| People v Darrell |
| 2016 NY Slip Op 08563 [145 AD3d 1316] |
| December 22, 2016 |
| Appellate Division, Third Department |
[*1](December 22, 2016)
| The People of the State of New York, Respondent, v Joe Darrell, Appellant. |
Todd G. Monahan, Schenectady, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas J. Evanovich of counsel),for respondent.
Garry, J. Appeals (1) from a judgment of the County Court of Clinton County(McGill, J.), rendered July 23, 2013, convicting defendant upon his plea of guilty of thecrime of promoting prison contraband in the first degree, and (2) by permission, from anorder of said court, entered December 10, 2015, which denied defendant's motionpursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
Defendant, an inmate, was charged with criminal possession of a weapon in the thirddegree and promoting prison contraband in the first degree after he was found to be inpossession of a scalpel during intake processing at the correctional facility. While beingprocessed, defendant set off the metal detector and a metal detection chair twice alertedto the presence of metal on his person, and he admitted that he had a scalpel which waslater recovered during a strip search. Defendant's motion to suppress his statements wasdenied following a Huntley hearing, as was his request for the personnel recordsof one of the correction officers who retrieved the weapon during the strip search.Pursuant to a plea agreement that included a waiver of appeal, defendant pleaded guiltyto promoting prison contraband in the first degree in exchange for a prison sentence of 2to 4 years to run consecutively to his current sentence, as a second felony offender.Defendant's subsequent motion to vacate the judgment of conviction was denied. He nowappeals from the judgment of conviction and, with permission, from the order denyinghis motion to vacate.
[*2] Initially, defendant'soral waiver of appeal, which was unaccompanied by a written waiver, is not valid, asCounty Court failed to adequately convey that "the right to appeal is separate and distinctfrom those rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d248, 256 [2006]; see Peoplev Larock, 139 AD3d 1241, 1242 [2016], lv denied 28 NY3d 932[2016]). However, his claims that his guilty plea was not voluntary and that counselfailed to provide effective assistance are unpreserved for review on direct appeal, as therecord does not disclose that he made a postallocution motion to withdraw his plea onthis ground (see CPL 220.60 [3]). Moreover, he made no statements during theplea allocution that negated an element of the crime or otherwise called into doubt hisguilt or the voluntariness of his plea so as to trigger the narrow exception to thepreservation requirement (see People v Lopez, 71 NY2d 662, 665-666 [1988]; People v Beverly, 140 AD3d1400, 1401 [2016], lv denied 28 NY3d 927 [2016]). Were we to addressthese claims, we would find that the plea was knowingly, voluntarily and intelligentlyentered with the aid of meaningful representation (see People v Conceicao, 26 NY3d 375, 382 [2015];People v Fiumefreddo, 82 NY2d 536, 543 [1993]; People v Briggs, 138 AD3d1355, 1356 [2016], lv denied 28 NY3d 927 [2016]).
Next, defendant argues that due to an alleged defect or error in count two of theindictment, to which he pleaded guilty, he did not receive fair notice of the chargeagainst him, requiring that his plea be vacated. While the charge specified that thedangerous contraband unlawfully possessed consisted of a "sharpened toothbrush," thePeople moved to amend the indictment to replace the specified contraband with a"scalpel-type" weapon;[FN1] the record does not reflect thatdefendant responded to that motion. However, by entering a knowing and voluntaryguilty plea in which he admitted possessing a sharpened toothbrush, aware that thismotion was pending, defendant forfeited any claim that there was a defect in theindictment or that the motion should have been granted (see People v Cooper, 88 AD3d1009, 1011 [2011], lv denied 17 NY3d 952 [2011]; People v Brown, 75 AD3d655, 656 [2010]; People v Trank, 58 AD3d 1076, 1077 [2009], lvdenied 12 NY3d 860 [2009]). While a plea does "not waive jurisdictional defects in[the] indictment, an indictment is jurisdictionally defective only if the acts alleged tohave been performed by the defendant do not constitute an actual crime" (People v Hall, 125 AD3d1095, 1096 [2015] [internal quotation marks and citation omitted]). Here, theindictment specified the Penal Law section under which defendant was charged andalleged all of the elements of the crime,[FN2] and sharpened objects capable of use asa weapon constitute dangerous contraband (see Penal Law § 205.00[4]; see e.g. People v Carter,90 AD3d 1159, 1159-1160 [2011]; People v Aponte, 60 AD3d 1199, 1200 [2009]; Peoplev De Polanco, 267 AD2d 777, 778 [1999], lv denied 94 NY2d 902 [2000]).Thus, the charge to which defendant pleaded guilty is a crime and the indictment was notjurisdictionally defective and was sufficient to apprise defendant of the charge (seePeople v Brown, 75 AD3d at 656; cf. People v Hurell-Harring, 66 AD3d 1126, 1127-1128[2009]).
Defendant also challenges County Court's denial, following a Huntleyhearing, of his motion to suppress his inculpatory statement to the correction officer whowas processing him into the facility when the metal was detected. The hearing testimonyestablished that as [*3]defendant and other inmates werebeing processed for admission into the facility by one correction officer, defendantactivated multiple metal detectors. In response to the officer's inquiry, defendant initiallydenied that he had anything on him but then admitted that he had a "scalpel between hisbutt cheeks." While defendant did not receive Miranda warnings at that point,"Miranda warnings are only required prior to questioning an inmate in a prisonsetting where the circumstances of the detention and interrogation . . . entailadded constraint that would lead a prison inmate reasonably to believe that there has beena restriction on that person's freedom over and above that of ordinary confinement in acorrectional facility" (People vHadfield, 119 AD3d 1224, 1226 [2014] [internal quotation marks and citationomitted], lv denied 24 NY3d 1002 [2014]). Here, defendant was not shackled orisolated and was undergoing routine group intake processing, which we find "analogousto the relatively brief, generally public, or otherwise on-the-scene investigatorydetentions in nonprison settings found not custodial for Miranda purposes"(People v Alls, 83 NY2d 94, 100 [1993], cert denied 511 US 1090[1994]). As there was no proof of any additional constraint beyond that which would beroutine in a correctional facility, this was not a custodial interrogation requiringMiranda warnings, and the motion was properly denied (see id.;People v Hadfield, 119 AD3d at 1226; People v Passino, 53 AD3d 204, 205-206 [2008],affd 12 NY3d 748 [2009]).
Defendant further contends that County Court erred in denying his request pursuantto Civil Rights Law § 50-a for an in camera inspection of the personnelrecords of the correction officer involved in the retrieval of the contraband to determineif there were prior complaints by inmates. This provision authorizes disclosure ofconfidential records upon "a clear showing of facts sufficient to warrant the judge torequest records for review" (Civil Rights Law § 50-a [2]). To avoid "fishingexpeditions" (Matter of Dunnigan v Waverly Police Dept., 279 AD2d 833, 834[2001] [internal quotation marks and citation omitted], lv denied 96 NY2d 710[2001]), the party seeking disclosure must demonstrate, "in good faith, some factualpredicate warranting the intrusion" (People v Harris, 121 AD2d 788, 789 [1986][internal quotation marks and citation omitted], lv denied 68 NY2d 770 [1986];accord Matter of Dunnigan v Waverly Police Dept., 279 AD2d at 834; seeMatter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145, 155-157 [1999]).Defendant's generalized request and later unsupported allegation, solely through anunsworn letter of counsel, that the officer had engaged in improper conduct andthereafter planted the contraband on his person, failed to establish any good faith, factualbasis supporting this request. Accordingly, we find no abuse of discretion in the denial ofthis application (see People v Harris, 121 AD2d at 789).
Finally, County Court properly denied defendant's motion to vacate the judgment ofconviction. His claims regarding the alleged defect in the indictment and the denial of hismotions to suppress and for in camera review of the correction officer's personnel filewere appealable are based entirely upon the facts in the record and have been fullyreviewed and determined to be without merit on his direct appeal herein (see CPL440.10 [2]; People vBeckingham, 116 AD3d 1298, 1299 [2014], lv denied 13 NY3d 742[2009]; People v Anderson,104 AD3d 968, 972 [2013], lv denied 21 NY3d 1013 [2013]). Likewise,defendant's claim that counsel was ineffective for failing at the Huntley hearingto call the correction officer who retrieved the contraband from defendant's person andwho was not present during the intake processing is belied by the record on direct appeal(see CPL 440.10 [2] [c]; 440.30 [4] [d]). The transcript reflects that defendanthimself made this request at the hearing, which the court denied based upon therepresentation of the People that they would not seek to introduce defendant's statementsto this correction officer at trial. Defendant's assertion that counsel was remiss in notrequesting a Mapp/Dunaway hearing to challenge the legality of thesearch and the identity of the confiscated contraband was not raised on direct appeal,although sufficient facts appear on the record to have permitted such review (seeCPL 440.10 [2] [c]); as such, this issue is also not the [*4]proper subject of a postverdict motion to vacate. Notably,"[i]n the context of a guilty plea, a defendant has been afforded meaningfulrepresentation when he or she receives an advantageous plea and nothing in the recordcasts doubt upon the apparent effectiveness of counsel" (People v Briggs, 138 AD3d1355, 1356 [2016] [internal quotation marks and citation omitted], lv denied28 NY3d 927 [2016]). As this and the remaining contentions are wholly unsupported byany affidavits or documentary evidence (see CPL 440.30 [1], [4] [b]), the motionwas properly denied.
Peters, P.J., Devine, Mulvey and Aarons, JJ., concur. Ordered that the judgment andorder are affirmed.
Footnote 1:The People's motion wasbased upon the evidence presented to the grand jury. The grand jury minutes are not inthe record on appeal and, accordingly, the record does not establish that there was adefect or error in the indictment.
Footnote 2:The precise objectpossessed is not an element of the crime (see Penal Law § 205.25[2]).