| People v Brockway |
| 2017 NY Slip Op 02582 [148 AD3d 1815] |
| March 31, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Steven P.Brockway, Appellant. (Appeal No. 1.) |
Betzjitomir Law Office, Bath (Susan Betzjitomir of counsel), for defendant-appellant.
Brooks T. Baker, District Attorney, Bath (John C. Tunney of counsel), for respondent.
Appeal from a judgment of the Steuben County Court (Joseph W. Latham, J.), rendered July31, 2013. The judgment convicted defendant, upon his plea of guilty, of burglary in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him, upon anAlford plea, of burglary in the second degree (Penal Law § 140.25 [2]). Inappeal No. 2, he appeals from a judgment convicting him, upon a plea of guilty, of tamperingwith a witness in the third degree (§ 215.11 [2]).
We reject defendant's contention in appeal No. 1 that his claim of actual innocence may bereviewed on direct appeal following his Alford plea. A claim of actual innocence "mustbe based upon reliable evidence which was not presented at the [time of the plea]" (People v Hamilton, 115 AD3d 12,23 [2014]), and thus must be raised by a motion pursuant to CPL article 440 (see generallyid. at 26-27). Moreover, a plea of guilty " 'should not be permitted to be used as adevice for a defendant to avoid a trial while maintaining a claim of factual innocence' "(People v Conway, 118 AD3d1290, 1290 [2014], quoting Peoplev Plunkett, 19 NY3d 400, 406 [2012]), and we conclude that the same is true of anAlford plea (see generally Matter of Silmon v Travis, 95 NY2d 470, 475 [2000]).Even assuming, arguendo, that defendant's contention survived the plea, we conclude thatdefendant has "failed to demonstrate [his] factual innocence" (People v Caldavado, 26 NY3d 1034, 1037 [2015]; see People v Larock, 139 AD3d1241, 1244 [2016], lv denied 28 NY3d 932 [2016]).
Defendant had over $15,000 in cash on his person when he was arrested on the charges inappeal No. 1. He contends that this money was unrelated to the charged crimes, and that thePeople's refusal to return it left him unable to retain counsel and denied him his right to counselof his choice (see generally Luis v United States, 578 US &mdash, &mdash, 136 S Ct1083, 1089 [2016]; United States v Gonzalez-Lopez, 548 US 140, 144 [2006]). Althoughthis contention survives defendant's plea (see People v Griffin, 20 NY3d 626, 630-632 [2013]), we concludethat it is encompassed by the waiver of the right to appeal set forth in the "settlement agreement"signed by defendant in connection with the guilty plea. That agreement provided that, for thepurpose of resolving potential civil forfeiture claims available to the District Attorney underCPLR article 13-A, the cash was subject to forfeiture as the proceeds or instrumentality of acrime (see CPLR 1311 [1]; see generally Morgenthau v Citisource, Inc., 68 NY2d211, 217-218 [1986]), and defendant "waive[d] any right of appeal he may have regarding theforfeiture of the property." In any event, even assuming that the waiver did not encompassdefendant's contention that he was denied his right to counsel of his choice as the result of thePeople's refusal to return the cash, we conclude that his contention is unpreserved for our review(see People v Kamp, 129 AD3d1339, 1341 [2015], lv denied 26 NY3d 969 [2015]; People v Sims, 105 AD3d 415,416 [2013], lv denied 21 NY3d 1009 [2013]; see generally People v Tineo, 64NY2d 531, 535-536 [1985]). While defendant repeatedly questioned why the money was notbeing returned to him, he never made the specific argument that County Court should order itreturned to protect his right to counsel of his choice (see CPL 470.05 [2]), nor did herequest a hearing to test the People's assertion that the money was related to the charged crimes(cf. Kaley v United States, 571 US &mdash, &mdash, 134 S Ct 1090, 1095 [2014]).
Defendant further contends in appeal No. 1 that the court should have directed that the grandjury minutes be disclosed to him. Even assuming, arguendo, that this contention survives his plea(cf. People v Ippolito, 114 AD3d703, 703 [2014]), we conclude that he failed to show the requisite "compelling andparticularized need" for disclosure of the minutes to overcome the statutory presumption of grandjury secrecy (People v Robinson, 98 NY2d 755, 756 [2002]; see People v Eun Sil Jang, 17 AD3d693, 694 [2005]; see generally CPL 190.25 [4] [a]). His related constitutional claimis unpreserved for our review (seePeople v Lane, 7 NY3d 888, 889 [2006]), and it is without merit in any event (seegenerally Robinson, 98 NY2d at 756-757). Defendant's contention in appeal No. 1 that thePeople violated their Brady obligation is forfeited by his guilty plea and is in any eventwithout merit (see People v Chinn,104 AD3d 1167, 1168 [2013], lv denied 21 NY3d 1014 [2013]). Defendant has notestablished that the People had access to his text messages prior to his plea or that thosemessages are exculpatory (see People vHotaling, 135 AD3d 1171, 1173 [2016]; see generally People v Santorelli, 95NY2d 412, 421-422 [2000]), and his " 'speculation concerning the existence of [allegedlyexculpatory video evidence] is insufficient to establish a . . . Bradyviolation' " (People v Bryant, 298 AD2d 845, 846 [2002], lv denied 99NY2d 556 [2002]; see People vBurton, 126 AD3d 1324, 1325-1326 [2015], lv denied 25 NY3d 1199 [2015]; People v Johnson, 60 AD3d 1496,1497 [2009], lv denied 12 NY3d 926 [2009]).
We further conclude in appeal No. 1 that the court properly refused to suppress evidencerecovered from defendant's vehicle without conducting a hearing. It was apparent frominformation available to defendant at the time of his request that the search of his vehicle wasbased on the automobile exception to the warrant requirement, i.e., probable cause to believe thatthe vehicle contained evidence of the charged crimes (see People v Jackson, 52 AD3d 1318, 1319 [2008], lv denied11 NY3d 737 [2008]; People vBrown, 24 AD3d 884, 886 [2005], lv denied 6 NY3d 832 [2006]; seegenerally People v Blasich, 73 NY2d 673, 678-680 [1989]). Inasmuch as defendant made noallegations questioning the applicability of that exception, he "did not raise any factual issuewarranting a hearing" (People vThomason, 37 AD3d 304, 305 [2007]; see generally CPL 710.60 [3]; Peoplev Mendoza, 82 NY2d 415, 421-422 [1993]).
Even assuming, arguendo, that defendant's request for dismissal of the indictment in eachappeal based on police misconduct survives his pleas and is preserved for our review (cf.People v Zer, 276 AD2d 259, 259 [2000], lv denied 96 NY2d 837 [2001]), weconclude that the record does not establish any misconduct sufficiently egregious to warrant thatrelief (see People v Peterkin, 12AD3d 1026, 1027 [2004], lv denied 4 NY3d 766 [2005]; People v Ranta,203 AD2d 307, 307 [1994], lv denied 83 NY2d 970 [1994], denied uponreconsideration 85 NY2d 979 [1995]; cf. People v Isaacson, 44 NY2d 511, 518-519[1978], rearg denied 45 NY2d 776 [1978]).
Defendant's further contention in appeal No. 1 that the court erred in accepting hisAlford plea in the absence of " 'strong evidence of actual guilt' " in therecord is not preserved for our review because he failed to move to withdraw his plea or to vacatethe judgment of conviction (People vElliott, 107 AD3d 1466, 1466 [2013], lv denied 22 NY3d 996 [2013]; see People v Heidgen, 22 NY3d981, 981-982 [2013]; see alsoPeople v Sherman, 8 AD3d 1026, 1026 [2004], lv denied 3 NY3d 681 [2004]).In any event, we conclude that the record contains the requisite evidence of guilt to support theplea (see People v Richardson, 132AD3d 1313, 1316 [2015], lv denied 26 NY3d 1149; Elliott, 107 AD3d at1466; People v Stewart, 307 AD2d 533, 534 [2003]). Defendant's remaining challengesto the voluntariness of his plea in each appeal are likewise unpreserved for our review (see generally People v Gilbert, 111AD3d 1437, 1437 [2013], lv denied 22 NY3d 1138 [2014]; Sherman, 8AD3d at 1026), and we decline to exercise our power to review them as a matter of discretion inthe interest of justice (see CPL 470.15 [3] [c]).
Defendant further contends with respect to each appeal that he was denied effectiveassistance of counsel because the attorney who represented him at the time of his pleas hadpreviously represented one of the victims of the incident underlying appeal No. 1, and thus had aconflict of interest. Defendant was informed of that potential conflict, however, and agreed towaive it, "thereby waiving any claim of possible prejudice resulting from the potential conflict"(People v Little, 139 AD3d1356, 1357 [2016], lv denied 28 NY3d 933 [2016]; see generally People vRoberts, 251 AD2d 431, 432 [1998], lv denied 92 NY2d 882 [1998], denied uponreconsideration 92 NY2d 904 [1998]). We reject defendant's additional claims of ineffectiveassistance of counsel, "inasmuch as he received 'an advantageous plea [bargain] and nothing inthe record casts doubt on the apparent effectiveness of counsel' " (People v Hoyer, 119 AD3d 1457,1458 [2014], quoting People v Ford, 86 NY2d 397, 404 [1995]).
We have reviewed defendant's remaining contentions and conclude that none warrantsreversal or modification of the judgment in either appeal. Present—Whalen, P.J., Centra,Carni, Curran and Troutman, JJ.