| People v Simpson |
| 2017 NY Slip Op 00350 [146 AD3d 1175] |
| January 19, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Appellant, vJohnnie Simpson, Also Known as Gazoo, Respondent. |
Law Office of Raymond D. Sprowls, Walden (Raymond D. Sprowls of counsel), forappellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Clark, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered April 14, 2015, convicting defendant upon his guilty plea of the crime ofcriminal possession of a controlled substance in the third degree.
In March 2014, defendant sold cocaine to a confidential informant (hereinafter CI) intwo separate controlled buys. Under the supervision of police, the CI arranged a thirdcontrolled buy, which culminated in defendant being arrested and found to be inpossession of cocaine prior to completion of the sale. Defendant was thereafter chargedwith criminal possession of a controlled substance in the third degree and criminalpossession of a controlled substance in the fourth degree. Defendant pleaded guilty tocriminal possession of a controlled substance in the third degree in full satisfaction of theindictment and waived his right to appeal. Defendant was sentenced to the agreed-uponprison term of six years, with two years of postrelease supervision, and he nowappeals.
We affirm. Our review of the record confirms that dependant's waiver of appeal wasknowing, voluntary and intelligent (see People v Ramos, 7 NY3d 737, 738 [2006]; People v Lopez, 6 NY3d248, 256 [2006]; People vDickson-Eason, 143 AD3d 1013, 1013 [2016], lv denied 28 NY3d 1123 [2016]). County Court thoroughly explained the meaning andconsequences of the appeal waiver and its separate and distinct nature, and defendantorally [*2]confirmed that he understood the implicationsof waiving his right to appeal and signed a written waiver of appeal in open court afterconferring with counsel. The valid appeal waiver forecloses defendant's claim ofineffective assistance of counsel, except to the extent that such claim impacts thevoluntariness of his plea; however, this claim is unpreserved as the record does notreflect that defendant moved to withdraw his plea on this ground (see CPL220.60 [3]; People vLobaton, 140 AD3d 1534, 1535 [2016], lv denied 28 NY3d 972[2016]). Defendant's statutory speedy trial arguments were also waived by his guilty plea(see People v Friscia, 51 NY2d 845, 847 [1980]; People v Slingerland, 101AD3d 1265, 1267 [2012], lv denied 20 NY3d 1104 [2013]). Defendant'srelated claim that trial counsel was ineffective for failing to move to dismiss theindictment on statutory speedy trial grounds was not preserved in the absence of anappropriate postallocution motion raising this argument; consequently, given that therecord is inadequate to review the merits of this claim, it can only be raised in a CPLarticle 440 motion (see People vViele, 130 AD3d 1097, 1097 [2015]).
Next, defendant contends that his trial counsel had an actual conflict of interest thatwas not adequately explained to or waived by him, therefore depriving him of theeffective assistance of conflict-free counsel. After the first day of the combined pretrialsuppression hearings, defense counsel advised County Court on the record, in defendant'spresence, that the CI had been arrested the night before the start of the hearing[FN1] and had retained defensecounsel's partner to represent him on those charges. Upon learning this information,defense counsel reported that he had advised his partner that the CI was involved in theevents that led to defendant's charges and directed the partner not to speak with the CIabout the charges against either the CI or defendant. The partner represented the CIsolely at the arraignment and bail hearing the next morning and immediately withdrewfrom the representation. Upon further inquiry by the court that day and again roughly twomonths later, defense counsel assured the court that he had never spoken to the CI andhad acquired no privileged information about him. Defense counsel further assured thecourt that his partner had no conversations with the police or the CI about thebackground of the charges against the CI and had not acquired any such information. Thecourt and defense counsel then advised defendant that, if counsel continued to representhim, counsel would not be able to use any privileged information, if he had acquired any,to cross-examine the CI at defendant's trial if he testified, and that the CI could claim thisprivilege. The court informed defendant that he was entitled to an attorney of hischoosing and could retain a new attorney and, when defendant indicated that he wasconfused, the court granted an adjournment to provide him with an opportunity to choosehis course after conferring with defense counsel or outside counsel. A week later,defendant indicated that he wanted defense counsel to continue to representhim[FN2] andthereafter accepted the plea offer that had been kept open for over two [*3]months.
An accused "may waive an attorney's conflict, but only after an inquiry has shownthat the defendant has an awareness of the potential risks involved in that course and hasknowingly chosen it" (People vSolomon, 20 NY3d 91, 95 [2012] [internal quotation marks and citationomitted]; see People vWright, 27 NY3d 516, 520-521 [2016]). We agree that defense counsel'srepresentation of defendant while his partner simultaneously, albeit very briefly,represented the CI, a potential key prosecution witness, created a conflict of interest(see People v Solomon, 20 NY3d at 94-95). Defendant argues that this gave riseto an actual, rather than merely a potential, conflict of interest in that the CI's interestsdiverged from his and the partner actively represented the CI.[FN3] Even assuming that there was an actualconflict of interest (see id. at 96), we find that defendant was fully andsufficiently apprised of the nature of the conflict and how it could potentially impact histrial if the CI were called to testify as a prosecution witness. Defendant was made awareof the potential risks and knowingly and voluntarily chose defense counsel's continuedrepresentation (see id. at 95; People v Gomberg, 38 NY2d 307, 313-314[1975]; compare People vPrescott, 21 NY3d 925, 927-928 [2013]). Inasmuch as defendant waived thisconflict after an adequate inquiry by the court and after having given his informedconsent, he was not deprived of meaningful representation (see People v Wright,27 NY3d at 520-521; People v Solomon, 20 NY3d at 97).
Relatedly, defendant's claims that he was coerced into pleading guilty or denied anopportunity to retain new counsel are unpreserved, as he made no postallocution motionon this ground (see People v Lobaton, 140 AD3d at 1535). In any event, thisclaim is belied by the record, which reflects that the nature and risks presented by theconflict of interest were discussed on the record at several appearances and thatdefendant had numerous opportunities to confer with counsel and to retain new counsel,including a one-week adjournment to retain new counsel if he so chose. Thus, were we toaddress the issue, we would find that defendant, having been advised that he had theright to an attorney of his choice, elected to proceed with counsel's representation andthat his subsequent plea was "a knowing, voluntary and intelligent choice amongalternative courses of action" (People v Conceicao, 26 NY3d 375, 382 [2015] [citationomitted]; see People v Fiumefreddo, 82 NY2d 536, 543 [1993]). We havereviewed defendant's remaining contentions and conclude that they lack merit.
McCarthy, J.P., Egan Jr., Lynch and Aarons, JJ., concur. Ordered that the judgmentis affirmed.
Footnote 1:The People laterclarified that the CI's May 19, 2014 arrest stemmed from charges that the CI had solddrugs in January 2014, which led to his informal agreement with police to thereaftercooperate. After the CI lost touch with police following defendant's arrest and did notcooperate or testify before the grand jury that handed up the indictment againstdefendant, the People determined to prosecute defendant without the CI and to arrest theCI for that earlier criminal conduct.
Footnote 2:While defendantindicated that he was unable to find an attorney to represent him "too soon," henonetheless agreed to continue with counsel's representation and made no requests foradditional time or another adjournment to retain substitute counsel.
Footnote 3:While County Courtreferred several times to this as a "potential" conflict of interest when advising defendant,the court did so because the CI had not testified at pretrial proceedings and it was notclear that the CI would be testifying at trial. We find that this characterization did notundermine the court's advisement of the potential risks of the conflict (see People vSolomon, 20 NY3d at 95).