| People v Griffin |
| 2015 NY Slip Op 09131 [134 AD3d 1228] |
| December 10, 2015 |
| Appellate Division, Third Department |
[*1](December 10, 2015)
| The People of the State of New York, Respondent, v Brandon Griffin, Appellant. |
Theodore J. Stein, Woodstock, 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 April 17, 2013, convicting defendant upon his plea of guilty of the crime ofcriminal possession of a controlled substance in the third degree.
Defendant was indicted and charged with one count of criminal possession of acontrolled substance in the third degree. The charge stemmed from a controlled buy thatoccurred in the City of Kingston, Ulster County on September 11, 2012, during thecourse of which defendant allegedly was found to be in possession of 110 glassineenvelopes of a substance that field tested positive for heroin. When the parties appearedbefore County Court in February 2013 for a suppression hearing and jury selection,defense counsel indicated that, despite having rejected prior offers, defendant wasinterested in accepting a plea. Following an extensive colloquy with County Court,defendant pleaded guilty to the sole count of the indictment[FN*] and waived his right to appeal inexchange for [*2]a sentence of nine years in prisonfollowed by three years of postrelease supervision. Defendant's subsequent pro se motionto withdraw his plea was denied, and County Court thereafter sentenced defendant inaccordance with the terms of the plea agreement. Defendant now appeals, contendingthat the waiver of his right to appeal was not knowing, intelligent and voluntary and thathe was denied the effective assistance of counsel.
We affirm. "When an appeal waiver is challenged, the operative question is whetherthe trial court has confirmed on the record that the defendant understands the terms andconditions of his or her plea agreement" (People v Pope, 129 AD3d 1389, 1389 [2015] [citationsomitted]). To that end, the court is "not obliged to engage in any particular litany orcatechism in satisfying itself that a defendant has entered a knowing, intelligent andvoluntary appeal waiver" (People v Smith, 121 AD3d 1131, 1131 [2014], lvdenied 24 NY3d 1123 [2015] [internal quotation marks and citations omitted]). Aslong as the record reflects "that there was some judicial examination of the waiver itself"(People v McCaskill, 76AD3d 751, 752 [2010] [internal quotation marks and citation omitted]) and that thedefendant had "a full appreciation of the consequences of such waiver" (People v Spellicy, 123 AD3d1228, 1229 [2014], lv denied 25 NY3d 992 [2015] [internal quotation marksand citations omitted]), the challenged waiver may be upheld.
Here, although County Court should have more clearly distinguished defendant'sright to appeal from the remainder of the rights that defendant forfeited upon pleadingguilty, the record nonetheless reflects that County Court reviewed the waiver withdefendant and obtained the required assurances that defendant fully appreciated theappellate rights that he was waiving (see People v Waite, 120 AD3d 1446, 1447 [2014]; People v Sylvan, 107 AD3d1044, 1045 [2013], lv denied 22 NY3d 1141 [2014]). Notably, during thecourse of the colloquy between County Court and defendant,defendant—evidencing his knowledge of the criminal justicesystem—inquired as to whether the waiver encompassed only those issues thatcould be raised upon a "direct appeal" or extended to CPL article 440 motions andhabeas corpus proceedings as well. Following additional discussions with County Court,defendant indicated that he had no further questions and, when County Court urgeddefendant to pose any inquiries that he may have to counsel prior to proceeding,defendant replied, "I'm fine." Defendant was presented with a copy of the detailedwritten waiver of appeal, which was amended to address defendant's concern regardinghis right to pursue certain postplea applications, and was questioned as to hisunderstanding thereof. Again, defendant indicated that he understood everything that hadbeen discussed. Defendant then executed the written waiver—the text of whichexpressly delineated the separate and distinct nature of defendant's appellate rights andconfirmed that defendant had been afforded "ample opportunity to discuss such rightsand [the] waiver with [his] attorney and to address and ask questions of [County] Courtregarding them." Under these circumstances, we are satisfied that the record reflects thatdefendant's waiver of his right to appeal his conviction and sentence was knowing,intelligent and voluntary (seePeople v Tole, 119 AD3d 982, 982-983 [2014]; People v Henion, 110 AD3d1349, 1350 [2013], lv denied 22 NY3d 1088 [2014]; People v White, 96 AD3d1299, 1299-1300 [2012], lv denied 19 NY3d 1029 [2012]; comparePeople v Pope, 129 AD3d at 1389-1390; People v Ritter, 124 AD3d 1133, 1134 [2015]; People v Bouton, 107 AD3d1035, 1036 [2013], lv denied 21 NY3d 1072 [2013]).
As to defendant's claim of ineffective assistance of counsel, certain of the argumentsraised by defendant in this regard—including his assertion that defense counselfailed to conduct an adequate pretrial investigation (see People v Bahr, 96 AD3d 1165, 1166 [2012], lvdenied 19 NY3d 1024 [2012]), seek out and interview alibi witnesses (see Peoplev Varmette, 70 AD3d [*3]1167, 1172 [2010], lvdenied 14 NY3d 845 [2010]), pursue certain discovery demands and/or availabledefenses (see People vDavis, 114 AD3d 1003, 1003 [2014], lv denied 23 NY3d 962 [2014]),seek sanctions for alleged prosecutorial misconduct (cf. People v Jones, 101 AD3d 1482, 1483 [2012], lvdenied 21 NY3d 1017 [2013]) and explain the collateral consequences of his plea(cf. People v Balbuena, 123AD3d 1384, 1386 [2014])—involve matters outside of the record and, assuch, are more properly the subject of a CPL article 440 motion. To the extent that thebalance of defendant's ineffective assistance of counsel claim impacts upon thevoluntariness of his plea, such claim survives the valid appeal waiver but must bepreserved by an appropriate postallocution motion (see e.g. People v Moses, 110 AD3d 1118, 1118 [2013]). Inthis regard, the record reflects that defendant made a pro se motion to withdraw his pleaclaiming, insofar as is relevant here, that counsel's performance was deficient in that sheconspired with the People to procure an "excessive sentence," failed to adopt four ofdefendant's five pro se motions and neglected to advocate for and secure a favorable pleadeal. Accordingly, the additional grounds now advanced by defendant in his pro sebrief—including his assertions that counsel failed to bring certain pretrial motions,neglected to correct inaccurate information relative to defendant's criminal history andfailed to object to County Court's alleged bias—are unpreserved for our review, asdefendant did not advance these specific grounds in his motion to withdraw his plea (see People v Delarosa, 104AD3d 956, 956 [2013], lv denied 21 NY3d 1003 [2013]; People v Escalante, 16 AD3d984, 984-985 [2005], lv denied 5 NY3d 788 [2005]).
In any event, "[d]efense counsel was not required to support defendant's various prose motions" (People vBlackwell, 129 AD3d 1690, 1691 [2015], lv denied 26 NY3d 926[2015]; see People v Jones, 261 AD2d 920, 920 [1999], lv denied 93NY2d 972 [1999]; see alsoPeople v Adams, 66 AD3d 1355, 1356 [2009], lv denied 13 NY3d 858[2009]), and "the failure to make a particular pretrial motion does not—perse—constitute ineffective assistance of counsel" (People v Alnutt, 107 AD3d1139, 1145 [2013], lv denied 22 NY3d 1136 [2014]; see People v Carbone, 101AD3d 1232, 1235 [2012]). Additionally, counsel did endeavor to clarify and correctcertain information contained in the presentence investigation report (see People vOrengo, 286 AD2d 344, 344-345 [2001], affd 97 NY2d 739 [2002]) and,contrary to defendant's assertion, the record falls far short of establishing any colorableclaim of judicial bias, thereby obviating any need for counsel to take corrective action inthis regard. The record is similarly bereft of any evidence of a "conspiracy" to subjectdefendant to an "excessive" sentence. In short, inasmuch as defendant "receive[d] anadvantageous plea and nothing in the record casts doubt on the apparent effectiveness ofcounsel" (People vVonneida, 130 AD3d 1322, 1322 [2015] [internal quotation marks and citationsomitted]; accord People vJenkins, 130 AD3d 1091, 1091 [2015]), we are satisfied that defendant wasafforded meaningful representation.
Finally, defendant's challenge to the perceived severity of his sentence is precludedby his valid waiver of the right to appeal (see People v Donah, 127 AD3d 1413, 1413 [2015]), andhis assertion that County Court should have assigned substitute counsel to represent himis unpreserved for our review. Defendant's remaining arguments, to the extent notspecifically addressed, have been examined and found to be lacking in merit.
McCarthy, J.P., Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Although the cover sheetof the indictment contains references to crimes with which defendant was not chargedand County Court mistakenly inquired as to whether defendant was pleading guilty tocriminal possession of a controlled substance in the first degree, it is otherwise clear fromthe record that defendant was charged with and pleaded guilty to one count of criminalpossession of a controlled substance in the third degree.