| People v Sanchez |
| 2015 NY Slip Op 00395 [124 AD3d 685] |
| January 14, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Daniel Sanchez, Appellant. |
Anthony M. Giordano, Ossining, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (John J. Carmody and RichardL. Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Zambelli, J.), rendered April 24, 2012, convicting him of murder in the first degree (fivecounts), attempted murder in the second degree (four counts), assault in the first degree(four counts), criminal possession of a weapon in the second degree (five counts),robbery in the first degree, and burglary in the first degree, upon his plea of guilty, andimposing sentence. The appeal brings up for review the denial, after a hearing, of thosebranches of the defendant's omnibus motion which were to suppress statements to lawenforcement officials.
Ordered that the judgment is affirmed.
The defendant and several accomplices entered an apartment looking for someonewho had allegedly interfered with their drug dealings, and demanded money afterthreatening to kill everyone in the apartment. Two male occupants of the apartment wereshot and killed, and the defendant was among the shooters. Four other occupants of theapartment were also shot, though not fatally, including a teenage girl and a five-year-oldchild. Three of the surviving victims identified the defendant because they knew him.Upon his arrest, and after the administration of Miranda warnings (seeMiranda v Arizona, 384 US 436 [1966]), the defendant ultimately admitted hisparticipation in the crime orally and on videotape.
In response to the defendant's motion to suppress his statements to law enforcementofficials, the Supreme Court conducted a pretrial Huntley hearing (see Peoplev Huntley, 15 NY2d 72 [1965]) to determine whether the defendant's confession wasgiven voluntarily and in accordance with his Fifth and Sixth Amendment rights. At theconclusion of the hearing, the court held that the defendant had not unequivocallyinvoked the right to counsel, and that his various inculpatory statements had beenvoluntarily uttered upon his waiver of his Miranda rights.
On January 12, 2012, just before jury selection was to commence, the defendantentered a plea of guilty to all counts of the indictment, which included five counts ofmurder in the first degree, four counts of attempted murder in the second degree, andrelated charges, with the understanding that he would be sentenced to maximumconcurrent sentences of life imprisonment without parole upon the convictions of murderin the first degree, and maximum sentences on the [*2]convictions of attempted murder in the second degree,assault in the first degree, criminal possession of a weapon in the second degree, robberyin the first degree, and burglary in the first degree, to run consecutively to the sentenceimposed upon the convictions of murder in the first degree. At sentencing, the sentencesimposed upon the defendant's convictions of assault in the first degree, criminalpossession of a weapon in the second degree, and robbery in the first degree were madeto run concurrently with the five concurrent terms of life imprisonment imposed upon theconvictions of murder in the first degree and the four consecutive terms of imprisonmentof 25 years imposed upon the convictions attempted murder in the second degree. Thisappeal brings up for review issues of suppression, effectiveness of counsel, andexcessiveness of sentence.
The Supreme Court properly denied that branch of the defendant's omnibus motionwhich was to suppress the statements he made to the arresting detectives during a secondinterview with those detectives, which he specifically requested only hours after denyinghis involvement in the shootings during a prior interview with them. The evidence at thesuppression hearing included a videotape of the second interview, which established that,after the defendant was read his Miranda rights, his statements reflected his desireto speak to the lawyer from the District Attorney's office who was going to prosecutehim, and not a lawyer who might potentially represent him. Thus, the defendant's requestto the interviewing detectives did not constitute an unequivocal invocation of the right tocounsel preventing further interrogation (see Miranda v Arizona, 384 US 436[1966]). The record also shows that the detectives explained at length that they could notpromise the defendant a plea deal, and reflects that his inculpatory statements werespontaneously made after he acknowledged receiving his Miranda rights inwriting and waiving such rights intelligently, knowingly, and voluntarily (see People v Williams, 97AD3d 769, 769-770 [2012]; People v Gega, 74 AD3d 1229, 1230-1231 [2010]; People v Jackson, 43 AD3d1181, 1182 [2007]).
There is no merit to the defendant's contention that his entry of a plea of guilty to allcounts of the indictment while represented by counsel, despite counsel's knowledge thatthe court would impose maximum sentences on each, should be viewed as ineffectiveassistance of counsel "per se." No decisional authority recognizes a per se standard in aplea proceeding, and we examine the issue with reference to counsel's overallperformance under both the federal standard (see Strickland v Washington, 466US 668 [1984]) and the New York standard (see People v Baldi, 54 NY2d 137[1981]). Both standards entail a two-part test, and the first prong under both is the"objective reasonableness standard," as set forth in Strickland v Washington (466US at 688; see People vBassi, 111 AD3d 845, 846 [2013]; People v Georgiou, 38 AD3d 155, 160-161 [2007]). Thesecond prong of the federal standard requires a showing of prejudice (see Stricklandv Washington, 466 US at 687), i.e., a reasonable probability that, but for counsel'serrors, the result of the proceeding would have been different. The second prong of theNew York standard contains a prejudice component focusing on the fairness of theprocess as a whole rather than the particular impact of counsel's alleged ineffectivenesson the outcome of the case (see People v Benevento, 91 NY2d 708, 714 [1998];see also People v Caban, 5NY3d 143, 156 [2005]; People v Bassi, 111 AD3d at 846). In the context ofa plea of guilty, the prejudice prong focuses upon whether counsel's ineffectiveperformance affected the outcome of the plea process (see Hill v Lockhart, 474US 52, 53 [1985]; People vMcDonald, 1 NY3d 109, 114 [2003]). A defendant bears the burden ofestablishing that he or she was deprived of the effective assistance of counsel by showingthe absence of strategic or other legitimate explanations for counsel's performance(see People v Flores, 84 NY2d 184, 186 [1994]; People v Henderson, 118AD3d 1020, 1023 [2014]).
At the time of the entry of the defendant's plea, the defendant insisted on speakingfor himself and pleading guilty to each count of the indictment over defense counsel'sstated objection to such a plea. Specifically, counsel interjected: "I object to that[,] [that][h]e'll plead guilty to each count of the indictment." In response, the defendant statedthree times that he was "not hesitating," and seven separate times said he was pleading"guilty." The defendant acknowledged four separate times his understanding that hewould receive the maximum sentence of life imprisonment without parole upon hisconvictions of murder in the first degree. Thereafter, a thorough allocution was made,pursuant to which the defendant admitted his guilt and again repeatedly acknowledgedthat he would receive the maximum possible sentence and never get out of jail for therest of his life. The allocution entertained by the Supreme Court was careful and [*3]painstaking, and at one point during the proceedings thedefendant appeared to lose patience with the court, saying "I understand. How manytimes [are] you going to say it? I understand." The defendant was careful during hiscolloquy with the court to gain the assurance, on more than one occasion, that he retainedthe right to appeal the court's adverse suppression ruling. The defendant also statedduring his allocution that he had fully discussed the plea with counsel, and that he wassatisfied with the legal advice he received from counsel. The court expressed itssatisfaction that the defendant's plea of guilty was knowingly, voluntarily, andintelligently entered.
Counsel was not ineffective for two primary reasons. First, a defendant at all timesretains the sole authority to decide whether or not to plead guilty (see People vColon, 90 NY2d 824, 825-826 [1997]; People v White, 73 NY2d 468, 478[1989]). Here, counsel, in addition to his advocacy of an omnibus motion andparticipation at a suppression hearing, objected on the record to the defendant's decisionto plead guilty to all counts of the indictment, and explained to the defendant that thedefendant's right to appeal the adverse suppression ruling would survive the plea. Thecourt's discussion with the defendant regarding all aspects of the plea and sentences wascareful, conscientious, painstaking, complete, and reflective of the importance andsolemnity of the proceeding. The defendant's argument on appeal, in essence, is thatcounsel was ineffective for not preventing him from entering a non-negotiated plea.However, the record makes clear that the defendant was insistent upon pleading guilty,with full knowledge and understanding of its ramifications, and regardless of whateverobjections may have been interposed by counsel. A defendant, with exceptions notrelevant here, has an absolute right under CPL 220.10 (2) to plead guilty to an entireindictment where, as here, the defendant acknowledges his or her guilt and the plea isknowingly and voluntarily entered (see People v Rosebeck, 109 AD2d 915, 916[1985]).
Second, there appears to have been a strategic reason behind the defendant's entry ofa non-negotiated plea of guilty. The defendant clearly expressed his desire to plead guiltyin lieu of proceeding later that day to jury selection and trial. On two separate occasions,the defendant specifically articulated that his primary concern was to mount a successfulappellate challenge to the Supreme Court's suppression ruling, and he made clear hisunderstanding that, if the suppression ruling were reversed on appeal, he would return tothe Supreme Court for trial. Although defense counsel stated on the record that theanticipated appeal was a "gamble," the defendant's strategy of entering the plea appearsto have been effectuated to avoid a trial where his admissions would be in evidence, inthe hope that, upon a future trial, such evidence would by then have been suppressed bythis Court. Moreover, in the event any witnesses would be unavailable for a second trial,it would be to the defendant's strategic advantage to avoid preservation of their testimonyat a first trial.
Under the circumstances of this case, involving a home invasion, two murders, andthe shooting of multiple innocents, including a small child, it cannot be said that thesentences imposed were excessive (see People v Farrar, 52 NY2d 302, 305[1981]; People v Suitte, 90 AD2d 80 [1982]). Dillon, J.P., Dickerson, Austin andCohen, JJ., concur.