| People v Nowlin |
| 2016 NY Slip Op 08627 [145 AD3d 1447] |
| December 23, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vQuintin A. Nowlin, Appellant. (Appeal No. 1.) |
The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of counsel), fordefendant-appellant.
Quintin A. Nowlin, defendant-appellant pro se.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.),rendered October 15, 2010. The judgment convicted defendant, upon his plea of guilty,of criminal possession of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment of MonroeCounty Court (Marks, J.) convicting him upon his plea of guilty of criminal possessionof a controlled substance in the third degree (Penal Law § 220.16 [12]) and,in appeal No. 2, he appeals from a decision and order of the same court (Argento, J.),which denied his CPL article 440 motion to vacate the judgment of conviction in appealNo. 1. In appeal No. 3, defendant appeals from another judgment of the same court(Piampiano, J.), convicting him upon a jury verdict of criminal possession of a controlledsubstance in the third degree (Penal Law § 220.16 [1]), and criminalpossession of a controlled substance in the fourth degree (§ 220.09[1]).
In appeal No. 1, defendant contends in his pro se supplemental brief that the courterred in failing to conduct a sufficient inquiry pursuant to People v Outley (80NY2d 702 [1993]) into his violation of the conditions of the plea agreement and drugtreatment court contract before imposing an enhanced sentence (see People v Goree, 107 AD3d1568, 1568 [2013], lv denied 21 NY3d 1074 [2013]; see generally People v Scott,101 AD3d 1773, 1774-1775 [2012], lv denied 21 NY3d 1019 [2013]).Defendant failed to preserve that contention for our review (see CPL 470.05 [2]).In any event, defense counsel conceded that defendant had been rearrested in violation ofthe conditions of his plea agreement, and thus the court had no duty to conduct a furtherinquiry (see People v Harris, 197 AD2d 930, 930 [1993], lv denied 82NY2d 850 [1993]). Defendant further contends in his pro se supplemental brief withrespect to appeal No. 1 that the court erred in terminating his drug court placementbecause the drug court contract did not contain a no-rearrest clause. That contention,however, is belied by the drug court contract in the record before us.
With respect to appeal No. 2, we reject defendant's contention in his pro sesupplemental brief that the court erred in denying without a hearing his motion pursuantto CPL article 440. In that motion, defendant contended that trial counsel in appeal No. 1was ineffective in failing to challenge the court's determination that defendant violatedthe conditions of his drug court contract. That contention, however, is based ondefendant's contention that there was no clause in the drug court contract prohibitingrearrest, which, as noted above, is belied by the record. The court therefore had discretionto deny the motion pursuant to CPL 440.30 (4) (d), because "the allegations essential tosupport the motion are contradicted by the record and there is no reasonable possibilitythat they are true" (People vBonilla, 6 AD3d 1059, 1061 [2004]; see People v Crenshaw, 34 AD3d 1315, 1316 [2006], lvdenied 8 NY3d 879 [2007]).
With respect to appeal No. 3, defendant contends in his main brief that the part of thejudgment convicting him of criminal possession of a controlled substance in the thirddegree is not supported by legally sufficient evidence that he intended to sell the cocaine,and that the verdict is contrary to the weight of the evidence for the same reason.Initially, we reject the contention of the People that defendant failed to preserve thatcontention for our review, and we conclude that defendant incorrectly concedes this issueon appeal. The Court of Appeals has "held that where[, as here,] the trial court reservesdecision on a defendant's motion to dismiss, the preservation rules do not bar review ofdefendant's claim" that the evidence is legally insufficient (People v Nicholson, 26 NY3d813, 830 [2016]; see Peoplev Payne, 3 NY3d 266, 273 [2004], rearg denied 3 NY3d 767 [2004]; People v Ubbink, 120 AD3d1574, 1574-1575 [2014];People v Evans, 59 AD3d 1127, 1127 [2009], lv denied 12 NY3d 815[2009]).
Nevertheless, we conclude that the evidence is legally sufficient to establishdefendant's intent to sell the drugs (see People v King, 137 AD3d 1572, 1573-1574 [2016],lv denied 27 NY3d 1134 [2016]; see generally People v Bleakley, 69NY2d 490, 495 [1987]). Furthermore, with respect to defendant's contention that theverdict under both counts of the indictment is contrary to the weight of the evidence,viewing the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we further conclude that the verdict is not against theweight of the evidence (seePeople v Freeman, 28 AD3d 1161, 1162 [2006], lv denied 7 NY3d 788[2006]; see generally Bleakley, 69 NY2d at 495).
With respect to appeal No. 3, defendant further contends in his main brief that thecourt erred in its Sandoval ruling. "By failing to object to the court's ultimateSandoval ruling, defendant failed to preserve that contention for our review" (People v Poole, 79 AD3d1685, 1685 [2010], lv denied 16 NY3d 862 [2011]; see People v Taylor, 140 AD3d1738, 1739 [2016]; Peoplev Kelly, 134 AD3d 1571, 1572 [2015], lv denied 27 NY3d 1070[2016]). In any event, any error in the court's Sandoval ruling is harmlessinasmuch as the evidence of defendant's guilt is overwhelming, and there is nosignificant probability that defendant would have been acquitted but for the error (seePeople v Arnold, 298 AD2d 895, 896 [2002], lv denied 99 NY2d 580[2003]; see generally People vGrant, 7 NY3d 421, 424-425 [2006]).
With respect to appeal No. 3, defendant also contends in his main brief that he wasdenied effective assistance of counsel because his attorney failed to request a lesserincluded offense with respect to the first count of the indictment. It is well settled that, inorder "[t]o prevail on a claim of ineffective assistance of counsel, it is incumbent ondefendant to demonstrate the absence of strategic or other legitimate explanations" fordefense counsel's allegedly deficient conduct (People v Rivera, 71 NY2d 705,709 [1988]; see People v Benevento, 91 NY2d 708, 712 [1998]; People v Schumaker, 136AD3d 1369, 1372 [2016], lv denied 27 NY3d 1075 [2016], deniedreconsideration 28 NY3d 974 [2016]), and defendant failed to make such a showinghere. Indeed, we note that counsel explained his strategy on the record when he declinedto request the lesser included offense at issue, and thus defendant's current contention isno more than a mere "disagreement with trial strategy, which does not constituteineffective assistance of counsel" (People v Cheatom, 295 AD2d 959, 960[2002], lv denied 98 NY2d 729 [2002]; see People v Flores, 84 NY2d184, 187 [1994]; Rivera, 71 NY2d at 708-709).
In his main and pro se supplemental briefs, defendant makes further claims ofineffective assistance of counsel in all three appeals. We conclude with respect to all ofdefendant's claims of alleged ineffective assistance of counsel that the evidence, the law,and the circumstances of this case, viewed in totality and as of the time of therepresentation, establish that defendant received meaningful representation (seegenerally People v Baldi, 54 NY2d 137, 147 [1981]).
Defendant also contends in his main brief that the court punished him for exercisinghis right to trial in appeal No. 3. Contrary to the People's contention, "the recordestablishes that this issue is preserved for our review; the court 'was aware of, andexpressly decided, the [issue] raised on appeal' " (People v Collins, 106 AD3d1544, 1546 [2013], lv denied 21 NY3d 1072 [2013], quoting People v Hawkins, 11 NY3d484, 493 [2008]). Nevertheless, we conclude that the sentence does not constitute apunishment for defendant's exercise of his right to go to trial. " 'Given that thequid pro quo of the bargaining process will almost necessarily involve offers tomoderate sentences that ordinarily would be greater . . . it is. . . to be anticipated that sentences handed out after trial may be moresevere than those proposed in connection with a plea' " (People v Smith, 21 AD3d1277, 1278 [2005], lv denied 7 NY3d 763 [2006], quoting People vPena, 50 NY2d 400, 412 [1980], rearg denied 51 NY2d 770 [1980]). Wetake particular note that the court specifically stated that it was not punishing defendantfor exercising his right to go to trial. In addition, "although the appeal by defendant fromthe judgment convicting him of the predicate conviction upon which his adjudication asa second felony offender is based remain[ed] pending [at the time of sentencing]," wenevertheless reject his contention in his pro se supplemental brief that "the court couldnot use that conviction as the basis for that adjudication" (People v Bailey, 90 AD3d1664, 1666 [2011], lv denied 19 NY3d 861 [2012]). With respect todefendant's contention in appeal No. 3, which is raised in his pro se supplemental brief,that the court erred in imposing a fine without holding a hearing or otherwisedetermining that the amount of the fine corresponded to defendant's gain from theoffense, " '[a] fine for a felony, when initially authorized by article 60, may beimposed, irrespective of whether the defendant gained money or property [L. 1977, c.352; (Penal Law) § 80.00]' " (People v McFarlane, 18 AD3d 577, 578 [2005], lvdenied 5 NY3d 791 [2005], quoting William C. Donnino, Practice Commentary,McKinney's Cons Laws of NY, Book 39, Penal Law art 80 at 5; see People vOrtiz [appeal No. 1], 104 AD3d 1202, 1203 [2013]). The sentence is not undulyharsh or severe.
We have considered defendant's remaining contentions in all three appeals in hismain and pro se supplemental briefs, and we conclude that none warrant reversal ormodification of the judgments or order. Present—Smith, J.P., Carni, Lindley,DeJoseph and Scudder, JJ.