| People v Pimentel |
| 2013 NY Slip Op 05238 [108 AD3d 861] |
| July 11, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vAlfredo Pimentel, Appellant. |
—[*1] D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Peters, P.J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered January 25, 2011, convicting defendant upon his plea of guilty of the crimeof course of sexual conduct against a child in the first degree (four counts).
Defendant was charged in an indictment with four counts of course of sexualconduct against a child in the first degree, stemming from allegations that he subjectedhis live-in girlfriend's daughters, both under the age of 11, to repeated acts of sexualconduct. Following commencement of a jury trial and the People's presentation oftestimony of numerous witnesses, including both victims, defendant pleaded guilty to theentire indictment.
During the plea colloquy, defendant affirmed that his plea was knowing, voluntaryand not coerced. He also stated that he had been provided with sufficient time to discussthe plea with counsel and that he was satisfied with his services. In consideration fordefendant's waiver of his right to appeal, which included a written waiver to that effectsigned in open court, the People agreed to recommend an aggregate sentence of 35 yearsin prison. No promise was made by County Court regarding sentencing, althoughdefendant was advised of the maximum [*2]potentialsentence.[FN1]
At sentencing, defendant made a pro se motion to withdraw his guilty plea andsought, among other things, an opportunity to seek new counsel. County Court deniedthe motion without a hearing and sentenced defendant to an aggregate term of 44 years inprison, followed by five years of postrelease supervision. Defendant appeals.[FN2]
County Court failed to adequately distinguish the right to appeal from those rightsthat are automatically forfeited upon a guilty plea, thus rendering defendant's appealwaiver invalid (see People vBradshaw, 18 NY3d 257, 264-265 [2011]; People v Veras, 103 AD3d 984, 985 [2013], lvdenied 21 NY3d 947 [2013]; People v Cianfarani, 81 AD3d 998, 999 [2011]).Moreover, no mention was made on the record during the course of the allocutionconcerning the waiver of defendant's right to appeal his conviction that he was alsowaiving his right to appeal the harshness of his sentence (see People v Maracle, 19NY3d 925, 928 [2012]). Nor do we find that the deficiencies in the allocution arecured by defendant's written appeal waiver, inasmuch as that document erroneously setsforth the purported consideration for the waiver[FN3]with no attempt to correct the inaccurate information or otherwise detail the correct terms(compare People v Glynn,73 AD3d 1290, 1290-1291 [2010]).
Next, defendant claims that, in the context of his pro se motion to withdraw his guiltyplea, defense counsel improperly took a position adverse to his interests. As a result ofthis claimed violation of his right to the effective assistance of counsel, defendant arguesthat County Court erred when it failed to appoint new counsel to pursue his motion towithdraw his guilty plea prior to deciding it on the merits. It is well settled that "assignedcounsel ha[s] no duty to participate in [a] defendant's pro se motion to withdraw his [orher] plea" (People vTrombley, 91 AD3d 1197, 1202 [2012], lv denied 21 NY3d 914 [2013];see People v Arnold, 102AD3d 1061, 1062 [2013]; People v Sawyer, 55 AD3d 949, 950-951 [2008]; People v Mills, 45 AD3d892, 895-896 [2007], lv denied 9 NY3d 1036 [2008]), and "a lack of suchsupport does not constitute a position adverse to the client" (People v Hutchinson, 57AD3d 1013, 1015 [2008], lv denied 12 NY3d 817 [2009]). Furthermore,while we recently reiterated that when remarks by counsel " 'affirmatively undermine[ ]' "arguments that a defendant seeks to present pro se to the trial court, [*3]the defendant is deprived of the effective assistance ofcounsel (People v McCray,106 AD3d 1374, 1375 [2013], quoting People v Vasquez, 70 NY2d 1, 4[1987]), the record here reveals that the remarks made by defense counsel with whichdefendant takes issue were made before counsel was aware of the substance of the claimsbeing advanced in defendant's pro se motion. In fact, following defendant's presentationof his claims to the court, and well after defense counsel's statements in response to thecourt's questioning, defendant noted that counsel had not "actually review[ed]" themotion. Thus, defense counsel's negative response to County Court's inquiry at the outsetof the hearing as to whether "there [was] any legal basis in [counsel's] knowledge toallow [defendant] to withdraw his plea of guilty" was clearly not an opinion on the meritsof defendant's pro se motion—which counsel had not yet reviewed—and,thus, counsel did not thereby take a position adverse to that of his client or affirmativelyundermine the arguments that defendant sought to present to the court (see People vMills, 45 AD3d at 895-896; People v Caple, 279 AD2d 635, 635-636[2001], lv denied 96 NY2d 798 [2001]; compare People v Mitchell,21 NY3d 964, 966 [2013]; People vVasquez, 70 NY2d at 3-4).[FN4]
While defendant's challenge to the severity of his sentence is not precluded by theinvalid waiver of the right to appeal, we nevertheless reject his claim that the sentenceimposed for these heinous crimes was harsh and excessive. Contrary to defendant'sargument, we do not find County Court's stern remarks at sentencing to be so"intemperate" that modification of the sentence is required (see People v Lopez, 51 AD3d1210, 1211 [2008]). In our view, "[g]iven the nature of the crimes, defendant'sexploitation of the position of trust he held over the victims and his failure to acceptresponsibility or express remorse for his actions, we find no abuse of discretion orextraordinary circumstances warranting a reduction of the sentence in the interest ofjustice" (People v Jaeger,96 AD3d 1172, 1175 [2012], lv denied 19 NY3d 997 [2012]; see People v Dunton, 30 AD3d828, 830 [2006], lv denied 7 NY3d 847 [2006]).
Lahtinen, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Inasmuch as themaximum permissible sentence for each count was 25 years, an aggregate sentence of 50years in prison was possible (see Penal Law § 70.80 [4] [a] [i]).
Footnote 2: Although defendant'snotice of appeal misstates the date upon which the judgment was rendered and thenumber of counts of which defendant was convicted, we exercise our discretion tooverlook these inaccuracies and treat the notice as valid (see CPL 460.10 [6]).
Footnote 3: Specifically, the writtenwaiver states that consideration for its execution was provided by a promise as to thesentence imposed by County Court and/or by the People's consent to the plea. Here,however, the court specifically made no promises regarding sentence and, sincedefendant exercised his statutory right to plead guilty to the entire indictment (seeCPL 220.10 [2]), the People's consent for the plea was not required.
Footnote 4: We note that, while wehave stated that "defense counsel has 'no duty to support a motion that he [or she]determined to be without merit" (People v Hutchinson, 57 AD3d at 1015,quoting People v Jones, 261 AD2d 920, 920 [1999], lv denied 93 NY2d972 [1999]), we do not find that the circumstances presented here—counsel'sapparent unawareness of the substance of defendant's motion at the time the sentencinghearing began—amount to a dereliction of counsel's duty. At the hearing,defendant presented his various grounds for withdrawal of his plea in open court, in thepresence of defense counsel, and all of defendant's proffered bases were clearly withoutmerit (see People v Sawyer, 55 AD3d at 950-951). Defendant sufficientlyarticulated his claims such that counsel could have taken action had a meritorious groundbeen proffered or other intervention been called for (see People v Mills, 45AD3d at 895-896). Thus, we see no deprivation of the effective assistance of counsel(see People v Sawyer, 55 AD3d at 950-951; People v Mills, 45 AD3d at895-896).