| People v Lewis |
| 2016 NY Slip Op 03215 [138 AD3d 1346] |
| April 28, 2016 |
| Appellate Division, Third Department |
[*1](April 28, 2016)
| The People of the State of New York, Respondent, v Thomas Lewis, Appellant. |
James E. Long, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Lahtinen, J.P. Appeals (1) from a judgment of the County Court of Albany County(Breslin, J.), rendered May 13, 2010, convicting defendant upon his plea of guilty of thecrime of assault in the first degree, and (2) by permission, from an order of the SupremeCourt (Breslin, J.), entered January 30, 2014 in Albany County, which denied defendant'smotion pursuant to CPL 440.10 to vacate the judgment of conviction, without ahearing.
Defendant pleaded guilty to assault in the first degree in satisfaction of three countscharged in an indictment stemming from his participation in the kidnapping and viciousbeating of a young woman in May 2009. Consistent with the plea agreement that alsocontemplated a waiver of appeal, defendant was sentenced as a second felony offender toa prison term of 22 years to be followed by five years of postreleasesupervision.[FN1]Defendant's subsequent pro se motion to vacate the judgment was denied in a writtendecision, without a hearing. Defendant now appeals from the judgment of convictionand, with permission, from the order denying his motion to vacate.
[*2] Initially, although an appeal waiver was recited as aterm of the plea agreement, a review of the record does not establish that defendant'sappeal waiver was knowing, voluntary and intelligent (see People v Lopez, 6 NY3d248, 256 [2006]). There was no written appeal waiver and, when County Courtelicited an oral waiver from defendant, it did not explain its meaning or ascertain that hehad specifically discussed the waiver or the appellate process with counsel (see People v Proper, 133 AD3d918, 919 [2015]; People vAshlaw, 126 AD3d 1236, 1237 [2015]). As the court's brief inquiry wasinsufficient "to ensure that defendant grasped the minimal information pertaining to theappeal waiver" (People vBradshaw, 18 NY3d 257, 260 [2011]; accord People v Anderson, 129 AD3d 1385, 1385 [2015],lv denied 26 NY3d 965 [2015]), it is not enforceable. Nonetheless, defendant'schallenge to his guilty plea as involuntary was not raised in an appropriate postallocutionmotion to withdraw his plea (see CPL 220.60 [3]), so it is unpreserved for ourreview on his direct appeal (seePeople v Atkinson, 124 AD3d 1149, 1150 [2015], lv denied 25 NY3d949 [2015]). Defendant made no statements during the allocution that negated anessential element of the crime or cast doubt on his guilt so as to trigger the narrowexception to the preservation rule (see People v Lopez, 71 NY2d 662, 665[1988]; People v Burritt,127 AD3d 1433, 1434 [2015]). In any event, contrary to his claim, a factualrecitation was not required and his unequivocal responses to the court's detailedquestions were sufficient to establish his guilt (see People v Rouse, 119 AD3d 1161, 1163 [2014]).
With regard to defendant's remaining claims, including those raised in his pro sebriefs, we have reviewed them and find that none has merit. His challenge to the count ofthe indictment to which he pleaded guilty as duplicitous is not preserved for our review(see People v Allen, 24NY3d 441, 449-450 [2014])[FN2] and, in any event, it was waived by hisguilty plea (see People vJackson, 129 AD3d 1342, 1342-1343 [2015]; People v Vega, 268 AD2d686, 687 [2000], lv denied 95 NY2d 839 [2000]). We have previously rejectedthe claim that Albany County did not have geographic jurisdiction over this assault (see People v White, 104 AD3d1056, 1057 [2013], lv denied 21 NY3d 1021 [2013]; CPL 20.40 [1]), and hisargument regarding the sufficiency of the evidence presented to the grand jury is alsoprecluded by his guilty plea (see People v Hansen, 95 NY2d 227, 231-232[2000]; People v Howard,119 AD3d 1090, 1091 [2014], lv denied 24 NY3d 961 [2014]).[FN3] While defendant maychallenge the agreed-upon sentence as harsh and excessive given the invalid appealwaiver (see People v Lopez, 6 NY3d at 256), it is devoid of merit in view of theunspeakable brutality of his crime (see People v White, 104 AD3d at 1057),committed while he was on parole for a manslaughter conviction.
We next turn to the denial of defendant's motion to vacate the judgment ofconviction, which is supported solely by defendant's own affidavit. The motion waspremised primarily upon the assertion that he was deprived of the effective assistance ofcounsel due to her failure to make pretrial motions and to move to dismiss the indictmenton various grounds. However, the[*3]"[f]ailure to requesta suppression hearing or to make a pretrial motion does not, by itself, constituteineffective assistance, particularly in the absence of any basis upon which to concludethat a defendant had a colorable claim or that counsel's actions were not premised upon alegitimate strategy" (People vVonneida, 130 AD3d 1322, 1322-1323 [2015], lv denied 26 NY3d 1093[2015]; see People v Caban,5 NY3d 143, 152 [2005]; People v Rivera, 71 NY2d 705, 709 [1988]; People v Cooper, 126 AD3d1046, 1047-1048 [2015], lv denied 26 NY3d 966 [2015]). Moreover, as partof the plea, defendant expressly waived the right to pretrial hearings and withdrew hispending motions, and his guilty plea prior to any suppression decisions forfeited thoseissues (see People v Fernandez, 67 NY2d 686, 688 [1986]). As the record reflectsthat counsel filed appropriate challenges to the indictment and to potential evidence andsecured a favorable plea deal, and nothing in the record casts doubt on counsel's apparenteffectiveness, we find no support for his claim that he was deprived of meaningfulrepresentation (see People v Caban, 5 NY3d at 152; People v Cooper,126 AD3d at 1048). Given that defendant has failed to "demonstrate the absence ofstrategic or other legitimate explanations for counsel's alleged failure[s]" (People v Wragg, 26 NY3d403, 409 [2015]) and his self-serving claims are contradicted by the record orunsupported by any other evidence, Supreme Court properly denied his motion to vacatewithout a hearing (see CPL 440.30 [4] [d]; People v Satterfield, 66 NY2d796, 798-799 [1985]; People vBrandon, 133 AD3d 901, 903-904 [2015]).
McCarthy, Garry, Rose and Mulvey, JJ., concur. Ordered that the judgment and orderare affirmed.
Footnote 1:The conviction ofanother participant in this crime was affirmed by this Court (People v White, 104 AD3d1056 [2013], lv denied 21 NY3d 1021 [2013]).
Footnote 2:Defendant's omnibusmotion seeking dismissal of the indictment (see CPL 210.20) did not raiseduplicity (see CPL 200.30), and County Court's decision thereon did not addressit.
Footnote 3:Appellate counsel alsoraises the duplicity and sufficiency of grand jury evidence claims on the appeal from thedenial of defendant's motion to vacate. For the reasons stated, these claims are precludedby defendant's valid guilty plea. Moreover, claims such as these that can be raised ondirect appeal are foreclosed for review in a CPL 440.10 motion (see CPL 440.10[2] [c]; People v Hillriegel,78 AD3d 1381, 1382 [2010]).