| People v Broomfield |
| 2015 NY Slip Op 04522 [128 AD3d 1271] |
| May 28, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vLendell Broomfield, Appellant. |
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), forrespondent.
Rose, J. Appeals (1) from a judgment of the Supreme Court (Breslin, J.), renderedAugust 9, 2012 in Albany County, convicting defendant upon his plea of guilty of thecrime of criminal possession of a controlled substance in the second degree, and (2) bypermission, from an order of said court, entered February 8, 2013, which denieddefendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction,without a hearing.
Defendant entered a guilty plea to the reduced charge of criminal possession of acontrolled substance in the second degree and waived his right to appeal. He wassentenced in accordance with the plea agreement to a prison term of three years followedby five years of postrelease supervision. Defendant's subsequent pro se motion to vacatethe judgment pursuant to CPL 440.10 was denied without a hearing. Defendant appealsfrom the judgment of conviction and, by permission, from the denial of his CPL article440 motion.
Although defendant's challenge to the voluntariness of his guilty plea survives hiswaiver of the right to appeal, he failed to preserve this issue by making a postallocutionmotion to withdraw his plea (see CPL 220.60 [3]; People v Easter, 122 AD3d1073, 1073 [2014], lv denied 24 NY3d 1219 [2015]). Nor did he make anystatements during the plea allocution that would trigger the narrow exception to thepreservation requirement (see People v Lopez, 71 [*2]NY2d 662, 664-665 [1988]; see also People v Tyrell, 22NY3d 359, 363-364 [2013]). In any event, our review of the plea allocutiondiscloses that he was informed of the terms of the agreement and the trial-related rightsthat he was forgoing, and that he understood the consequences of his guilty plea. Further,he indicated that he had sufficient time to confer with counsel and had not been forcedinto pleading guilty, belying his present claims of coercion or undue pressure (see People v Morey, 110 AD3d1378, 1379 [2013], lv denied 23 NY3d 965 [2014]). As for defendant'swaiver of appeal, we find that it was knowing, voluntary and intelligent (see People v Bradshaw, 18NY3d 257, 264-265 [2011]; People v Ramos, 7 NY3d 737, 738 [2006]), whichprecludes his challenge to the sentence as harsh and excessive (see People v Lopez, 6 NY3d248, 253 [2006]).
With regard to defendant's claims that he received ineffective assistance of counsel,they survive his appeal waiver to the extent that they implicate the voluntariness of hisplea, but they were not preserved by a postallocution motion (see People v Guyette, 121AD3d 1430, 1432 [2014]). In any event, the record refutes his assertion that, due tocounsel's failures, he was unaware of the duration of postrelease supervision, theconsequences of the plea and the nature of an appeal waiver or that he was, by pleadingguilty, waiving his pending pretrial hearings (see People v Rodriguez, 118 AD3d 1182, 1183 [2014],lv denied 24 NY3d 964 [2014]). These matters were either explained by SupremeCourt or defendant acknowledged that counsel had done so. Further, a review of therecord as a whole reflects that counsel pursued pretrial motions and negotiated a veryfavorable plea deal, and that defendant received meaningful representation (seePeople v Henry, 95 NY2d 563, 565 [2000]).
Turning to Supreme Court's summary denial of defendant's CPL article 440 motion,his challenge to the indictment based upon the asserted lack of required signatures is nota jurisdictional defect that survives his guilty plea and appeal waiver. In any event, theface of the indictment was signed by the Assistant District Attorney, as was theaccompanying backer, which was also signed by the grand jury foreperson, thussatisfying the statutory requirements (see CPL 200.50 [8], [9]; People v Burch, 97 AD3d987, 988 [2012], lv denied 19 NY3d 1101 [2012]). Defendant's guilty pleaforfeited the claim that he was denied the right to testify before the grand jury and, evencrediting his assertion that counsel failed to advise him of this right, which is notestablished, no prejudice is shown (see People v Carlton, 120 AD3d 1443, 1444 [2014]). Giventhe nature of the claims and defendant's submissions, no hearing was required (seePeople v Satterfield, 66 NY2d 796, 799 [1985]).
Lahtinen, J.P., Devine and Clark, JJ., concur. Ordered that the judgment and orderare affirmed.