| People v Gonzalez |
| 2015 NY Slip Op 05710 [130 AD3d 1089] |
| July 2, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Josue Gonzalez, Appellant. |
Craig Meyerson, Latham, for appellant, and appellant pro se.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered February 13, 2013, convicting defendant upon his plea of guilty of thecrimes of criminal contempt in the first degree and tampering with a witness in the thirddegree.
As a result of a domestic violence incident, defendant was charged in a 10-countindictment with various crimes, including criminal contempt in the first degree,tampering with a witness in the third degree and criminal obstruction of breathing orblood circulation. Defendant subsequently pleaded guilty to one count of criminalcontempt in the first degree and tampering with a witness in the third degree in exchangefor a proposed sentence of six months in jail followed by a five-year term of probation.During the plea proceedings, County Court admonished defendant that, if he failed tocooperate with the Probation Department in preparing a presentence investigation reportor was charged with any new offenses, the court would not be bound by the sentencingagreement. Thereafter, defendant, among other things, was arrested on new charges,resulting in a hearing to determine whether he violated the conditions of the pleaagreement. At that hearing, defendant's pro se motions to withdraw his plea upon theground that it was involuntary and to dismiss the indictment based upon the failure ofdefense counsel to facilitate his testimony before the grand jury were denied. At theconclusion of the hearing, County Court found that defendant indeed had violated theconditions of the plea agreement and imposed an enhanced sentence of consecutiveprison terms of 1
[*2] Defendant initially contends that his plea wasinvoluntary in that he would not have pleaded guilty but for defense counsel's ineffectiveassistance in failing to honor his request to testify before the grand jury. Although therecord establishes that, at a preliminary hearing, defense counsel gave oral notice ofdefendant's intention to testify before the grand jury, defendant acknowledges in his prose submission that, upon the advice of counsel, he waived his appearance before thegrand jury. In any event, even though defendant now disagrees with that advice, adefendant is not, per se, denied the effective assistance of counsel by the failure ofdefense counsel to facilitate his or her desire to testify before the grand jury (see People v Simmons, 10NY3d 946, 949 [2008]). To that end, with regard to "strategic and tactical decisionslike testifying before the grand jury, [a] defendant[ ] represented by counsel [is] deemedto repose decision-making authority in [his or her] lawyer[ ]" (People v Lasher, 74 AD3d1474, 1476 [2010], lv denied 15 NY3d 894 [2010] [internal quotation marksand citation omitted]). Moreover, defendant has not shown that any prejudice resultedfrom his lack of appearance before the grand jury or that the outcome would have beendifferent had he testified (see People v Simmons, 10 NY3d at 949; People v Carlton, 120 AD3d1443, 1444 [2014], lv denied 25 NY3d 1070 [2015]). In view of this, and given that a review of the record establishesthat defendant received meaningful representation throughout the course of theproceedings, we are unpersuaded that defendant's plea was involuntary due to anyalleged ineffective assistance of counsel (see People v Carlton, 120 AD3d at1444; People v Sylvan, 108AD3d 869, 870 [2013], lv denied 22 NY3d 1091 [2014]).
As to the balance of defendant's voluntariness claim, a review of the plea colloquyfails to reflect that defendant's guilty plea was anything other than knowing, voluntaryand intelligent. To the extent that defendant challenges the imposition of both thepresentence conditions as part of the agreement and the enhanced sentence, we note thatdefendant explicitly agreed to the conditions set forth by County Court without objectionand was informed of the maximum sentence that could be imposed absent the pleaagreement (see People vThomas, 81 AD3d 997, 998 [2011], lv denied 16 NY3d 900 [2011]; People v Coffey, 77 AD3d1202, 1203-1204 [2010], lv denied 18 NY3d 882 [2012]). Defendant'sremaining contentions, including those raised in his pro se brief, have been reviewed andfound to be without merit.
Peters, P.J., McCarthy and Rose, JJ., concur. Ordered that the judgment isaffirmed.