People v Hall

2015 NY Slip Op 01487 [125 AD3d 1095]

February 19, 2015

Appellate Division, Third Department

As corrected through Wednesday, April 1, 2015

[*1](February 19, 2015)

The People of the State of New York, Respondent, vTyquan Hall, Appellant.

Alexander W. Bloomstein, Hillsdale, for appellant.

Joseph Stanzione, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.

Lahtinen, J.P. Appeals (1) from a judgment of the County Court of Greene County(Lalor, J.), rendered February 23, 2010, convicting defendant upon his plea of guilty ofthe crime of burglary in the first degree, and (2) by permission, from an order of saidcourt (Pulver Jr., J.), entered June 28, 2013, which denied defendant's motion pursuant toCPL 440.10 to vacate the judgment of conviction, without a hearing.

The underlying facts are set forth in our decision in an earlier appeal by one of theseveral individuals who allegedly acted together with defendant in committing variouscrimes during the course of entering a home in the Town of Catskill, Greene County (People v Dixon, 93 AD3d894 [2012]). Defendant and codefendant Melvin Lett Jr.—who was the onlyone of the four not wearing a mask—were charged together in a 26-countindictment, and two other individuals—Duane Dixon and Timothy HallJr.—were also indicted for the same crimes. Lett pleaded guilty to burglary in thefirst degree (count one of the indictment) as part of a plea deal in which he, among otherthings, agreed not to testify on behalf of a codefendant should any of the other three go totrial. Shortly thereafter, Dixon, Timothy Hall and then defendant accepted similar pleabargains, with each pleading guilty to one count of burglary in the first degree andagreeing not to testify on behalf of any codefendant. Defendant's motion to withdraw hisplea was denied, and County Court (Lalor, J.) sentenced him in accordance with the pleaagreement to 81/2 years in prison together with five [*2]years of postrelease supervision.^[FN1] His CPL 440.10 motion to vacate hisjudgment of conviction was denied without a hearing by County Court (Pulver Jr., J.).Defendant appeals from both his judgment of conviction and, by permission, the orderdenying his CPL article 440 motion.

Defendant argues that the first four counts of the indictment—chargingburglary in the first degree and three counts of robbery in the first degree—werejurisdictionally defective, and that County Court (Lalor, J.) erred in denying his motionto dismiss those counts and in granting the People's motion to amend. We areunpersuaded. "While a defendant's guilty plea does not waive jurisdictional defects in anindictment, an indictment is jurisdictionally defective only if the acts alleged to havebeen performed by the defendant do not constitute an actual crime" (People v Brown, 75 AD3d655, 656 [2010] [citations omitted]). The first four counts incorporated by referencethe applicable specific statutory provisions, which generally is " 'sufficient toapprise . . . defendant of the charge[s] and, therefore, render[ ] the count[s]jurisdictionally valid' " (People v Cane, 123 AD3d 1301, 1302 [2014], quoting People v Moon, 119 AD3d1293, 1294 [2014], lv denied 24 NY3d 1004 [2014]; cf. People v Boula, 106 AD3d1371, 1372 [2013], lv denied 21 NY3d 1040 [2013] [holding that suchspecific statutory reference "may be negated . . . by the inclusion of conductthat does not constitute the crime charged"]). In addition, the People promptly moved toamend the indictment to add the specific weapons used to the originally recited list offirearms from the statute (see Penal Law §§ 140.30 [4]; 160.15[4]) and to also add that each of the first four counts was an armed felony offense(see CPL 200.50 [7] [b]; see also People v Giordano, 274 AD2d 748, 749[2000]; People v Coleman, 235 AD2d 928, 929 [1997], lv denied 89NY2d 1033 [1997]). This amendment to the indictment did not change the theory of thecase or prejudice defendant and, accordingly, it was not error to allow the amendment(see People v Giordano, 274 AD2d at 749; see also CPL 200.70 [1]; People v Cruz, 61 AD3d1111, 1112 [2009]; Peoplev Latour, 11 AD3d 819, 820 [2004], lv denied 4 NY3d 800 [2005]).

Next, defendant contends that his plea was not voluntarily made and that it was errorto deny his motion to withdraw his plea. These contentions rest upon the same provisionof the plea bargain as was unsuccessfully challenged by his codefendant in People vDixon (93 AD3d at 895-896). Defendant pleaded guilty at the same time and underthe same conditions as Dixon. He has not pointed to any facts in the record up to the timethat he accepted the plea that would distinguish his case and require a different result asto these issues than the one reached in People v Dixon (supra). His furtherargument that his sentence was harsh and excessive is precluded by his valid waiver ofappeal (see id. at 896; People v Richardson, 83 AD3d 1290, 1292 [2011], lvdenied 17 NY3d 821 [2011]). The judgment of conviction must thus beaffirmed.

Finally, we turn to defendant's assertion that his CPL article 440 motion should nothave been denied without a hearing. In his motion, defendant urged that the provision ofthe plea agreement precluding a codefendant from testifying—primarily aspertained to Lett testifying on behalf of defendant—violated his rights to dueprocess and a fair trial. Initially, we reiterate that "we do not encourage the type of pleaagreements fashioned by the People here" (People v Dixon, 93 AD3d at 896)."[D]ue process may be violated when the prosecution's conduct deprives a defendant ofexculpatory testimony" (Peoplev Sharpe, 70 AD3d 1184, 1186 [2010], lv denied 14 NY3d 892 [2010]),and such conduct could, depending on the circumstances, [*3]include conditioning "the plea of a codefendant upon his[or her] promise not to testify at [the] defendant's trial and to threaten to increase thecodefendant's sentence should he [or she] violate that condition" (People v Whitfield, 115 AD3d1181, 1182 [2014], lv denied 23 NY3d 1044 [2014]; see People vTurner, 45 AD2d 749, 749-750 [1974]). Nonetheless, reversal is not required when"the proposed [excluded] evidence is not shown to be exculpatory" (People vSharpe, 70 AD3d at 1186), such as when the codefendant's allocution acknowledgedthe veracity of a prior statement implicating the defendant (see People v Scanlon,231 AD2d 852, 853 [1996]), the codefendant has given materially contradictory orinconsistent statements regarding the defendant's actions (see People v Sharpe, 70AD3d at 1186) or it is otherwise established that the codefendant's testimony would notbe exculpatory (see People vDavis, 39 AD3d 873, 874 [2007], lv denied 9 NY3d 842 [2007]; People v Warren, 27 AD3d496, 497-498 [2006], lv denied 7 NY3d 796 [2006]). In the context ofchallenging such a plea in a CPL article 440 motion where a codefendant has not alreadymade statements indicating the defendant's involvement, we have noted that obtaining anexculpatory statement from the codefendant or being rebuffed in an attempt to do sobecause of the terms of the plea might give rise to an issue as to whether the terms of theplea deprived the defendant of due process or a fair trial (see People v Dixon, 93AD3d at 896 n 2).

Here, neither Lett's allocution nor any statement attributed to him (or the othercodefendants) implicated defendant in the crimes and, in fact, at sentencing Lett made arather ambiguous statement regarding the other participants: "I pled guilty, all right, butthat don't mean lock up everybody you think is guilty. I pled guilty because I'm guilty,but I know who was with me that night, you understand, and I will save that for thefuture." This statement, which was cryptic and could have been raised on direct appeal,was insufficient alone to support defendant's challenge to the plea agreement. However,in his CPL article 440 motion, defendant included two affidavits from Lett. In the firstaffidavit, Lett explained in some detail how defendant's cell phone (apparently a keypiece of evidence) ended up at the crime scene in that they had been together earlier inthe day and defendant accidentally left it in Lett's vehicle. Significantly, in the secondaffidavit, Lett stated that he would not provide further details because he believed that,under his plea agreement, his sentence of 81/2 years could be revoked andreplaced with a sentence of up to 25 years if he testified on behalf ofdefendant.^[FN2]Under the narrow circumstances here, in which no codefendant implicated defendant, acodefendant purported to provide an innocent explanation for one piece of evidenceimplicating defendant, that same codefendant stated under oath that he believed he wasconstrained by his plea (and still under threat of a much longer prison sentence) fromproviding any further information, and that codefendant's subjective belief was notwholly unfounded in light of statements by County Court [*4]and the People at the time of his plea, we are persuaded thatdefendant should receive a hearing on his motion (see People v Dixon, 93 AD3dat 896 n 2). At the hearing, he will have "the burden of proving by a preponderance ofthe evidence every essential fact required to support his motion" (People v Lackey, 48 AD3d982, 982-983 [2008], lv denied 10 NY3d 936 [2008]).^[FN3]

Egan Jr., Lynch and Devine, JJ., concur. Ordered that the judgment is affirmed.Ordered that the order is reversed, on the law, and matter remitted to the County Court ofGreene County for further proceedings not inconsistent with this Court's decision.

Footnote 1:Under the terms of theplea deals, the recommended prison term for each was 10 years unless all four agreed toplead guilty, in which event the recommended sentence would be 81/2years. Defendant was the last to accept the plea arrangement.

Footnote 2:The People provide noauthority for revoking a sentence that had been imposed years earlier and partiallyserved, and replacing it with a longer one because a codefendant testifies on behalf of adefendant. In the typical conditional sentence situation, the terms or conditions must besatisfied during a time of adjournment before sentencing is pronounced (see People vAvery, 85 NY2d 503, 507 [1995] [examples of conditional sentences cited therein]).Once a sentence is imposed, it generally may not be changed (see CPL 430.10).Nonetheless, in light of the colloquy at the time of Lett's plea, we cannot say that hisconcern is totally unfounded, and he did not receive subsequent assurance that he is notnow subject to a more severe sentence if he testifies (cf. People v Whitfield, 115AD3d at 1183).

Footnote 3:We note that defendanthas served six years of his 81/2-year prison sentence and, if successful inhaving his plea vacated, he risks potential exposure to a longer prison sentence ifultimately found guilty. If it has not already been done, such fact should becommunicated to defendant by his counsel (see New York State Office of IndigentLegal Services Appellate Standards and Best Practices at 8,https://www.ils.ny.gov/files/Appellate%20Standards%20Final%20010515.pdf [accessedJan. 24, 2015]).