| People v Wiggins |
| 2015 NY Slip Op 02517 [126 AD3d 1229] |
| March 26, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vMatthew Wiggins, Appellant. |
Gail B. Rubenfeld, Monticello, for appellant.
James R. Farrell, District Attorney, Monticello (Katy Schlichtman of counsel), forrespondent.
Lynch, J. Appeals (1) from a judgment of the County Court of Sullivan County(McGuire, J.), rendered November 15, 2012, convicting defendant upon his plea of guiltyof the crime of criminal possession of a controlled substance in the fourth degree, and (2)by permission, from an order of said court, entered April 2, 2013, which denieddefendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction,without a hearing.
Defendant was charged in a single count indictment with criminal possession of acontrolled substance in the fourth degree stemming from his arrest at the mobile home ofJoseph Orrego. On August 29, 2012, defendant pleaded guilty to the charge and waivedhis right to appeal. Prior to sentencing, defendant moved to withdraw his plea and for theassignment of new counsel. County Court denied the motion except to the extent ofassigning new counsel for purposes of sentencing. Defendant was then sentenced to theagreed-upon prison term of 4
Despite the fact that defendant's waiver of his right to appeal was otherwise valid, weagree that defendant's plea—the terms of which included defendant's waiver of hisright to appeal—was not knowing and therefore must be vacated. As to thisargument, defendant maintains that [*2]his plea should bevacated because his counsel, the People and County Court all erred in addressing hiseligibility for a shock incarceration program (see Correction Law art 26-A).Initially, a claim of ineffective assistance of counsel survives a valid appeal waiver "tothe extent that a defendant alleges that counsel's ineffectiveness impacted upon thevoluntariness of his or her guilty plea" (People v Devino, 110 AD3d 1146, 1147 [2013]). A motionto vacate a guilty plea "generally will not be granted absent evidence of fraud, innocenceor mistake in the inducement" (People v McKinney, 122 AD3d 1083, 1083-1084 [2014];see CPL 220.60 [3]; People v Mitchell, 73 AD3d 1346, 1347 [2010], lvdenied 15 NY3d 922 [2010]).
During the plea allocution, defendant's counsel informed County Court that he hadadvised defendant that he was eligible for the shock incarceration program and thatdefendant was "entering his plea based upon my advice to that effect." While CountyCourt made clear that the decision on whether defendant would be approved for theprogram rested with the Commissioner of Corrections and Community Supervision, thecourt indicated that it would either take no position or give a positive recommendation atsentencing. When the court inquired whether defendant would be eligible given his priorburglary conviction, the prosecutor responded that it was "likely" that defendant wouldbe accepted into the program. The flaw in this discussion is that, having previously beenconvicted of a violent felony, defendant was not eligible for the program (seeCorrection Law § 865 [1]; 7 NYCRR 1800.4 [b] [1]). This is not a situationas in People v Benson (100AD3d 1108 [2012]) and People v Williams (84 AD3d 1417 [2011], lvdenied 17 NY3d 863 [2011]), where neither the defendant's eligibility nor ultimateadmission into the shock incarceration program was a condition of the plea. Here, ascounsel's statement quoted above confirms, defendant's eligibility for the program wasthe express basis for his plea. Moreover, by focusing on a potential recommendation andthe likelihood of defendant being allowed to participate, the responding commentary ofthe court and prosecutor, however unintended, was misleading. Given the mistake by allinvolved in the plea proceeding, and counsel's failure to provide meaningfulrepresentation on this issue, we agree with defendant's contention that his motion towithdraw his guilty plea should have been granted.
Further, having vacated defendant's guilty plea, including the waiver of the right toappeal that was one of its terms, we turn to defendant's additional contention that hereceived ineffective assistance of counsel prior to the plea, specifically in regard to hissuppression motion. In the initial suppression motion, counsel misstated that the seizureoccurred when the police were "in defendant's apartment on an unrelated matter." WhileCounty Court recognized that defendant was actually arrested in the home of Orrego, thecourt determined, in an order dated August 1, 2012, that defendant lacked standing tochallenge the warrantless entry into Orrego's home since defendant failed to show anyconnection to the home "beyond that of his mere transient presence." While this motionwas pending, defense counsel received an affidavit from Orrego explaining thatdefendant was one of his "house guests for the night" and that the police entered hishome over his objection. Remarkably, in a letter dated July 26, 2012, counselinaccurately informed defendant that the People had consented to a suppression hearingconcerning the search of the home and failed to alert the court of the Orrego affidavit.While counsel renewed his motion for a suppression hearing on August 14, 2012 relyingon the Orrego affidavit, County Court again denied the motion finding, in part, that theOrrego affidavit was not newly discovered evidence (see CPL 710.40 [4]). Thisdecision was made on August 29, 2012, the same day that defendant entered hisplea.
Since we have determined that the plea must be vacated, and the case remitted toCounty Court for further proceedings, we further note that a trial court is not obligated toconduct a suppression hearing "unless the accused alleges facts that, if true, demonstratestanding to challenge the search or seizure" (People v Burton, 6 NY3d 584, 587 [2006]). Pertinent here,"an [*3]overnight guest has an expectation of privacy inthe host's home" and, thus, standing to contest a search of that home (People vPerretti, 278 AD2d 597, 599 [2000], lv denied 96 NY2d 762 [2001]; seeMinnesota v Olson, 495 US 91, 98-99 [1990]; People v Ortiz, 83 NY2d 840,842 [1994]; People v Murray, 169 AD2d 843, 844 [2d Dept 1991], lvdenied 78 NY2d 1013 [1991]). In our view, the facts set forth in the Orrego affidavitnecessitated, at a minimum, that a hearing be held to determine whether defendant hadstanding to contest the search (see People v Mabeus, 47 AD3d 1073, 1075 [2008]; seealso People v Jose, 239 AD2d 172, 173 [1997]; People v Cordoba, 179AD2d 404, 404 [1992]; compare People v Scully, 14 NY3d 861, 864 [2010]).
Defendant's remaining arguments on his appeal from the judgment of conviction, aswell as his appeal from the order denying his CPL article 440 motion, have beenrendered academic by our decision.
McCarthy, J.P., and Garry, J., concur.
Clark, J. (dissenting). Because defendant's admission into a shock incarcerationprogram was not a condition of his plea agreement, we respectfully dissent. Even thoughdefense counsel, the People and County Court all ascribed to the mistaken impressionthat defendant would be eligible for such program, their error is irrelevant to our analysisof the validity of the plea to the extent that shock incarceration was not promised todefendant and his eligibility was not a condition of his plea.
At the plea proceeding, County Court twice recited the terms of defendant's pleaagreement stating that, "at the time of sentencing, the People will recommend a term of[4
Furthermore, based upon defendant's valid waiver of his right to appeal, we find thatdefendant's arguments with respect to the suppression issue are not preserved for ourreview.
Egan Jr., J., concurs. Ordered that the judgment is reversed, on the law, plea vacatedand matter remitted to the County Court of Sullivan County for further proceedings notinconsistent with this Court's decision.[*4] Ordered thatthe appeal from the order is dismissed, as academic.