| People v Larock |
| 2016 NY Slip Op 03907 [139 AD3d 1241] |
| May 19, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJoshua R. Larock, Appellant. |
John A. Cirando, Syracuse, for appellant.
Mary E. Rain, District Attorney, Canton (Ramy Louis of counsel), forrespondent.
Rose, J. Appeals (1) from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered August 8, 2013, convicting defendant upon his plea of guilty ofthe crimes of burglary in the third degree and criminal contempt in the first degree, and(2) by permission, from an order of said court, entered February 13, 2014, which denieddefendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction,without a hearing.
In September 2011, pursuant to a combined negotiated plea agreement, defendantpleaded guilty to criminal contempt in the first degree in satisfaction of a three-countindictment, admitting that he had violated an order of protection in place to protect themother of his children (hereinafter the victim). Defendant also waived indictment andpleaded guilty to burglary in the third degree as charged in a superior court information,stemming from his theft from a business. The plea agreement included a waiver of appealand satisfied other pending charges. It contemplated that if defendant successfullycompleted a Judicial Diversion Program (hereinafter the program) (see CPL art216), he would be sentenced to two years of interim probation followed by five years ofprobation but, if he failed to complete the program, he could face consecutive sentenceswith a maximum aggregate of 11 years in prison. In May 2013, defendant was chargedwith violating several terms of the program, as amended, and thereafter waived his rightto a hearing, consented to his termination from the program and admitted two of theviolations. Defendant did so pursuant to an agreement whereby he received consecutiveprison sentences of 2 to 4 years for the burglary conviction and 3 to 6 years for thecontempt conviction, [*2]as an admitted second felonyoffender. An order of protection was issued in favor of the victim and defendant wasordered to pay restitution. Defendant's subsequent motion to vacate the judgment wasdenied without a hearing. Defendant now appeals from the judgment of conviction and,with permission, from the order denying his motion to vacate.
Initially, we agree with defendant that his waiver of appeal was not knowing,voluntary or intelligent (seePeople v Lopez, 6 NY3d 248, 256 [2006]). While County Court elicited an oralappeal waiver from defendant, the court failed to inform him that his appeal rights wereseparate and distinct from those rights automatically forfeited upon his guilty plea(see id.; People vMones, 130 AD3d 1244, 1244 [2015]). The written waiver signed during theplea colloquy is likewise deficient, and there was no effort by the court to ascertain ifdefendant had read the waiver, was aware of its contents or had discussed it withcounsel. Accordingly, as defendant's appreciation of the consequences of the waiver arenot established on the record, the waiver is not valid (see People v Elmer, 19 NY3d 501, 510 [2012]; People v Rabideau, 130 AD3d1094, 1094-1095 [2015]; People v Ashlaw, 126 AD3d 1236, 1237 [2015]).
Defendant's challenges to the voluntariness and factual sufficiency of his guilty pleaare unpreserved for our review in the absence of an appropriate postallocution motionraising these claims[FN1] (see People v Atkinson, 124 AD3d 1149, 1150 [2015],lv denied 25 NY3d 949 [2015]). The narrow exception to the preservation rule isinapplicable inasmuch as the record does not disclose that defendant made statementsduring the plea allocution casting doubt upon his guilt or negating a material element ofthe crime (see People v Lopez, 71 NY2d 662, 665-666 [1988]). Contrary to hisassertions, the allocution was not ambiguous and he was "not required to recite theelements of his crime[s] or engage in a factual exposition, as his unequivocal affirmativeresponses to County Court's questions were sufficient to establish the elements of thecrime[s] charged" (People vRouse, 119 AD3d 1161, 1163 [2014] [internal quotation marks and citationomitted]). Moreover, defendant did not make any statements during the plea colloquysuggestive of an intoxication defense, and his postplea remark during a discussionconcerning the order of protection did not obligate the court to make further inquiryregarding a potential defense (see People v Mayo, 130 AD3d 1099, 1100 [2015]; People v Pearson, 110 AD3d1116, 1116-1117 [2013]; cf. People v Peterson, 124 AD3d 993, 994 [2015]).
Defendant next argues that County Court abused its discretion in terminating himfrom the program. However, defendant consented to his termination from the programand admitted violating the amended terms of the program contract in exchange for anegotiated sentence; he never attacked the program agreement before County Court,leaving the issue unpreserved (see People v Labaff, 127 AD3d 1471, 1472 [2015], lvdenied 26 NY3d 931 [2015]; People v Disotell, 123 AD3d 1230, 1231 [2014], lvdenied 25 NY3d 1162 [2015]).
With regard to defendant's challenge to the agreed-upon sentence as harsh andexcessive, we are unpersuaded given defendant's extensive criminal history andprotracted failure to avail himself of numerous treatment and program opportunities toaddress his substance abuse and other problems. As the sentence was less than themaximum potential sentence under the original plea agreement and consecutivesentencing was authorized for these distinct crimes which involved domestic abuse andburglarizing a business (see Penal Law § 70.25 [2]; People vSalcedo, 92 NY2d 1019, 1021 [1998]), we decline to disturb thesentence.
[*3] Turning to defendant's challengeto the denial of his motion to vacate the judgment, we find that it was properly deniedwithout a hearing (see CPL 440.30 [4]). Defendant's motion is premised uponpurported newly discovered evidence consisting of an affidavit from the victim claimingthat she had "exaggerated" the incident that led to the indicted criminal contempt in thefirst degree charge to which defendant pleaded guilty (see CPL 440.10 [1] [g]).However, "vacatur of a judgment of conviction on this ground is expressly conditionedupon the existence of a verdict of guilt after trial [and d]efendant's plea of guiltytherefore foreclosed relief upon this ground" (People v Sides, 242 AD2d 750,751 [1997] [emphasis added], lv denied 91 NY2d 836 [1997]; see People v Philips, 30 AD3d621, 622 [2006], lv denied 8 NY3d 949 [2007]).[FN2] In any event, even if the affidavit wereviewed as recantation evidence, which has been deemed an "extremely unreliable form ofevidence" (People v Tucker,40 AD3d 1213, 1214 [2007], lv denied 9 NY3d 882 [2007]), it was at mostimpeachment evidence, which is insufficient to set aside the judgment of conviction onthis ground (see People v Salemi, 309 NY 208, 216, 221 [1955], certdenied 350 US 950 [1956]; People v Avery, 80 AD3d 982, 986 [2011], lvdenied 17 NY3d 791 [2011]; People v Sides, 242 AD2d at 751). To theextent that defendant's motion is based upon an assertion of "actual innocence" (People v Hamilton, 115 AD3d12, 20-22 [2014]), his submissions do not demonstrate his factual innocence (see People v Caldavado, 26NY3d 1034, 1037 [2015]).
Finally, we reject defendant's argument that the 18-year no-contact order ofprotection in favor of the victim, to which he consented as part of the final pleaagreement, should be vacated based upon the victim's submissions at sentencing and onthe CPL 440.10 motion. Given defendant's admitted actions toward the victim, repeatedinability to abide by the temporary order and harassment of the victim after County Courtmodified the conditions when he was in the program, we find no abuse of discretion(see CPL 530.12 [5]; People v Yu-Jen Chang, 92 AD3d 1132, 1136[2012]).[FN3]Defendant's remaining claims have been examined and determined to lack merit.
Lahtinen, J.P., Lynch, Clark and Aarons, JJ., concur. Ordered that the judgment andorder are affirmed.
Footnote 1:Defendant did not raisethese claims in his motion to vacate the judgment.
Footnote 2:This new evidencelikewise did not, as defendant asserts, deprive County Court of subject matter jurisdictionover these matters (see CPL 10.10 [2] [b]; 10.20 [1] [a]).
Footnote 3:Notably, the order ofprotection did not prohibit phone contact or prison visitation with the children, providedthe victim was not involved, and County Court expressly left open the possibility that theorder could be modified if defendant were to take certain steps.