| People v Rapp |
| 2015 NY Slip Op 08204 [133 AD3d 979] |
| November 12, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJohn J. Rapp, Appellant. |
Brian M. Quinn, Albany, for appellant.
Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.
Clark, J. Appeals (1) from a judgment of the County Court of Warren County (HallJr., J.), rendered December 17, 2013, convicting defendant upon his plea of guilty of thecrimes of criminal sale of a controlled substance in the third degree and unlawfullydealing with a child in the first degree, and (2) by permission, from an order of saidcourt, entered May 30, 2014, which denied defendant's motion pursuant to CPL 440.10to vacate the judgment of conviction, without a hearing.
In April 2012, defendant was indicted and charged with two counts each of criminalpossession of a controlled substance in the third degree, criminal sale of a controlledsubstance in the third degree and conspiracy in the fourth degree, as well as one count ofunlawfully dealing with a child in the first degree, all stemming from two alleged drugtransactions in the City of Glens Falls, Warren County. In full satisfaction of theindictment, defendant pleaded guilty to one count each of criminal sale of a controlledsubstance in the third degree and unlawfully dealing with a child in the first degree andwaived his right to appeal. He was sentenced, as a second felony offender, to a prisonterm of seven years to be followed by three years of postrelease supervision.[FN*] Defendant thereaftermoved, pursuant to CPL 440.10, to [*2]vacate thejudgment on the basis of, among other things, the ineffective assistance of counsel.County Court denied the motion without a hearing. Defendant now appeals from thejudgment of conviction and, with permission, from the order denying his postconvictionmotion.
Initially, defendant's unchallenged waiver of appeal precludes his contention that thegrand jury minutes were deficient on the basis that the People may have failed to instructthe grand jury on the agency defense (see People v Hansen, 95 NY2d 227, 230[2000]), as well as his claim that the agreed-upon sentence was harsh and excessive (see People v Lopez, 6 NY3d248, 256 [2006]; People vToback, 125 AD3d 1060, 1061 [2015], lv denied 25 NY3d 993 [2015];People v Miner, 120 AD3d1449, 1450 [2014]).
While portions of defendant's claim that the indictment was jurisdictionally defectivesurvive his guilty plea and waiver of appeal (see People v Casey, 95 NY2d 354,363 [2000]; People vSlingerland, 101 AD3d 1265, 1265-1266 [2012], lv denied 20 NY3d1104 [2013]), they are without merit. Specifically, "where an indictment countincorporates by reference the statutory provision applicable to the crime intended to becharged, it has been repeatedly held that this is sufficient to apprise the defendant of thecharge and, therefore, renders the count jurisdictionally valid" (People v Moon, 119 AD3d1293, 1294 [2014], lv denied 24 NY3d 1004 [2014] [internal quotationmarks, brackets and citations omitted]). Here, because counts two and seven of theindictment—i.e., the counts to which defendant pleaded guilty—recite,among other things, the specific section of the Penal Law under which defendant wascharged, those counts of the indictment were not jurisdictionally defective (see People v Cruz, 104 AD3d1022, 1023-1024 [2013]; People v Motz, 52 AD3d 1029, 1030 [2008], lvdenied 11 NY3d 791 [2008]). Moreover, although the People concede that the twocounts of conspiracy in the fourth degree are jurisdictionally defective, defects containedin the counts to which defendant did not plead guilty constitute mere technical flaws thatare precluded by defendant's waiver of appeal (see People v Olmstead, 111 AD3d 1063, 1064 [2013]; People v Maye, 69 AD3d1115, 1116 [2010], lv denied 15 NY3d 807 [2010]).
Defendant next asserts that his plea should be vacated because the People breachedtheir promise to make County Court aware of his cooperation and recommend a lowersentence. Although this contention is not precluded by defendant's waiver of appeal (see People v Dame, 100 AD3d1032, 1034 [2012], lv denied 21 NY3d 1003 [2013]; People v Carter, 64 AD3d1089, 1091 [2009], lv denied 13 NY3d 835 [2009]), it nonetheless evadesour review inasmuch as defendant failed to properly preserve the argument with apostallocution motion to withdraw his plea (see People v Parsons, 3 AD3d 790, 791 [2004]). In anyevent, defendant was sentenced in accordance with the agreed-upon plea bargain.
However, we do agree with defendant's contention that remittal to County Court isrequired inasmuch as his CPL 440.10 motion was improperly denied without a hearing,as defendant's claims of ineffective assistance of counsel are based upon matters notapparent on the face of the record (compare CPL 440.30; People vSatterfield 66 NY2d 796, 799 [1985]). Specifically, defendant's pro se motion tovacate the judgment of conviction contains sworn allegations of ineffective assistancebased upon counsel's failure to engage in discovery or motion practice and counselpressuring him to accept the plea offered by the People, as well as arguments that weconstrue to implicate the voluntariness of defendant's plea. The People opposeddefendant's application, by way of letter, solely on the basis that a direct appeal wasalready pending (see CPL 440.10 [2] [b]) and provided no additionaldocumentary proof regarding the substance of defendant's allegations. County Courtagreed with the People and denied the motion without a hearing.
[*3] The record before us contains no motions ordiscovery, and the reason for their absence is not apparent. We are able to ascertain onlythe following from the record. In June 2012, at arraignment on the indictment, defendantsigned a preplea waiver—also absent from the record and, notably, innocuouslyreferred to by County Court as "the yellow sheet"—permitting a prepleainvestigation by the Probation Department and a report to be sent to County Court. Weare unable to determine whether counsel was present with defendant during his interviewwith the Probation Department. Two months later, defendant wrote to County Courtexpressing his dissatisfaction with counsel—a complaint that, at least according tothis record, remains substantively unaddressed prior to defendant's plea in September2012. Two days shy of one year following his arraignment, defendant was finallysentenced and a subsequent letter from defense counsel to defendant appears in the file,which profoundly misstates the facts and circumstances surrounding defendant's plea,among other things, as we otherwise know them. Inasmuch as there is no factual recordof defendant's claims, we are powerless to properly address them. Therefore, upon therecord before us, we are of the view that a hearing should have been held on his CPL440.10 motion to determine the validity of defendant's allegations of ineffectiveassistance of counsel.
Thus, the matter must be remitted to County Court for a hearing on defendant's CPL440.10 motion to vacate the judgment of conviction. Furthermore, because defendant'sarguments of ineffective assistance of counsel on direct appeal likewise concern mattersoutside the record, these claims are more properly the subject of a postconviction motion(see People v Hansen, 95 NY2d 227, 230-231 [2000]; People v Jenkins, 130 AD3d1091, 1092 [2015]; Peoplev Green, 9 AD3d 687, 688 [2004]).
McCarthy, J.P., Egan Jr. and Rose, JJ., concur. Ordered that the judgment isaffirmed. Ordered that the order is reversed, on the law, and matter remitted to theCounty Court of Warren County for a hearing on defendant's CPL article 440motion.
Footnote *:Defendant wassentenced to time served with respect to the conviction of unlawfully dealing with a childin the first degree.