| People v Malloy |
| 2017 NY Slip Op 05764 [152 AD3d 968] |
[*1]
| 1 The People of the State of New York, Respondent, v Levi C.Malloy, Appellant. |
Jack H. Weiner, Chatham, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Egan Jr., J. Appeals (1) from a judgment of the Supreme Court (Breslin, J.), renderedSeptember 3, 2014 in Albany County, upon a verdict convicting defendant of the crime ofcriminal possession of a weapon in the second degree, and (2) by permission, from an order ofsaid court, entered March 1, 2016 in Albany County, which denied defendant's motion pursuantto CPL 440.10 to vacate the judgment of conviction, without a hearing.
During the early morning hours of October 25, 2013, a member of the City of Albany PoliceDepartment observed a vehicle operated by defendant make an illegal right-hand turn at a trafficlight at the intersection of Morton Avenue and Delaware Avenue in the City of Albany. Theofficer initiated a traffic stop and, upon approaching the vehicle, detected the odor of marihuanaand observed a couple of "burnt marihuana cigarettes in [the vehicle's] ashtray." A subsequentsearch of the vehicle revealed a .25 caliber handgun with a magazine containing six live roundsof ammunition. In January 2014, defendant was indicted and charged with one count of criminalpossession of a weapon in the second degree. Following unsuccessful suppression motions, a jurytrial ensued, at the conclusion of which defendant was convicted as charged. Defendant's motionto set aside the verdict was denied, as was his subsequent motion for renewal, and he wassentenced to a prison term of 15 years followed by five years of postrelease supervision.Defendant thereafter filed a CPL 440.10 motion seeking, among other things, specificperformance of an alleged preindictment plea agreement. Supreme Court denied defendant'smotion without a hearing, and these appeals ensued.
[*2] Defendant initially contends that he was denied the right to be present at sidebarconferences. We disagree. There is no question that "[a] defendant has the right to be present atevery material stage of a trial, including ancillary matters such as questioning prospective jurorsat sidebar regarding bias, hostility or predisposition" (People v Abdullah, 28 AD3d 940, 941 [2006], lvs denied 7NY3d 784 [2006]; see People v Antommarchi, 80 NY2d 247, 250 [1992]). It is equallyclear, however, that such right may "be voluntarily waived by a defendant or the defendant'sattorney" (People v Abdullah, 28 AD3d at 941; see People v Burch, 97 AD3d 987, 989 [2012], lv denied 19NY3d 1101 [2012]; People vJackson, 52 AD3d 1052, 1053 [2008], lv denied 11 NY3d 789 [2008]). Notably,a defendant's waiver in this regard may be either express or implied (see People v Flinn, 22 NY3d 599,601-602 [2014]; People v Williams,15 NY3d 739, 740 [2010]; People v Jackson, 52 AD3d at 1053). Here, the recordreflects that when Supreme Court inquired as to whether defendant would be attending sidebarcolloquies, defense counsel, after conferring with defendant, indicated that defendant wished todefer making a decision—stating, "We'll have an answer on the [first day of trial]." Juryselection then proceeded without any further discussion of defendant's attendance at sidebarconferences and, thereafter, defendant neither invoked his right to be present at such conferencesnor objected to his absence therefrom. Under these circumstances, we find that defendant, by hisconduct and in the absence of any corresponding objection in this regard, waived his right to bepresent at sidebar conferences (see People v Keen, 94 NY2d 533, 539 [2000]; Peoplev Jackson, 52 AD3d at 1053).
Defendant's claim of ineffective assistance of counsel is equally unavailing. The recordreflects that, following his arraignment, defendant was represented by three separate attorneys.After defendant expressed dissatisfaction with the Public Defender initially assigned tohim—claiming that she had "sold [him] out" and indicating that he alone would dictatewhen "the f. . . [she could] respond" to the court's inquiries—Supreme Court,citing an obvious breakdown in communication, indicated that it would assign the AlternatePublic Defender's office to represent him. Representation by that office lasted approximately twomonths until defendant again claimed that counsel was "not working in [his] best interests."When defendant appeared for the Sandoval/Ventimiglia hearing with his thirdattorney, he informed Supreme Court that he "no longer want[ed] this man representing [him]because . . . he's not doing . . . his job as a lawyer"—a criticismthat apparently stemmed from the fact that certain of defendant's suppression motions had provento be unsuccessful. Defendant proceeded to trial with this particular attorney and now claims thatcounsel failed to provide him with meaningful representation.
As the case law reflects, "[a] defendant receives effective assistance of counsel so long as theevidence, the law, and the circumstances of a particular case, viewed in totality and as of the timeof the representation, reveal that the attorney provided meaningful representation" (People v Speaks, 28 NY3d 990,992 [2016] [internal quotation marks, brackets and citation omitted]; see People v Kalina, 149 AD3d1264, 1267 [2017]). Notably, "[t]he test is reasonable competence, not perfectrepresentation" (People v Kalina, 149 AD3d at 1267 [internal quotation marks andcitations omitted]). Here, trial counsel engaged in appropriate motion practice, articulated cogentopening and closing statements, fully cross-examined the People's witnesses, made appropriaterequests to charge and, when there was a legal basis for doing so, raised appropriate evidentiaryobjections. Under these circumstances, we are satisfied that defendant received meaningfulrepresentation. Defendant's remaining arguments relative to the performance of the variousattorneys who represented him in this matter amount to nothing more than a generalizeddissatisfaction that certain rulings did not pan out in his favor, and it goes without saying thatdefense counsel, although obligated to zealously represent his or her client's interests, cannot befaulted for failing to achieve the defendant's desired outcome.
Finally, we find no merit to defendant's claim that the sentence imposed was harsh and [*3]excessive. "A sentence that falls within the permissible statutoryrange will not be disturbed unless it can be shown that the sentencing court abused its discretionor extraordinary circumstances exist warranting a modification" (People v Ramos, 133 AD3d 904,908 [2015] [internal quotation marks and citations omitted], lv denied 26 NY3d 1149[2016]). Further, "[t]he mere fact that a sentence imposed after trial is greater than that offered inconnection with plea negotiations is not proof positive that defendant was punished for assertinghis right to trial" (People v Peart,141 AD3d 939, 942 [2016] [internal quotation marks and citations omitted], lvdenied 28 NY3d 1074 [2016]). Given defendant's extensive criminal history, which includedseven prior felony convictions, and his refusal to accept responsibility, we discern no basis uponwhich to disturb the sentence imposed. Defendant's assertion that Supreme Court displayedvindictiveness in imposing sentence is belied by the fact that the court, in an exercise of itsdiscretion, elected to sentence defendant as a second felony offender instead of as a persistentfelony offender (as requested by the People).
Turning to the CPL 440.10 motion, defendant argues that he was denied specificperformance of an alleged pretrial plea agreement purportedly negotiated with various membersof the Albany Police Department and an Assistant District Attorney. According to defendant, inexchange for turning in additional firearms, he was told that he would be allowed to plead guiltyto a misdemeanor and receive a one-year sentence. Supreme Court denied the motion without ahearing finding, among other things, that there was no record evidence of any such deal and, inany event, that defendant was not placed in a position of "no return" because the firearmsallegedly relinquished upon his behalf did not form the basis for his conviction.
The case law makes clear that "off-the-record promises made in the plea bargaining processwill not be recognized where they are flatly contradicted by the record, either by the existence ofsome on-the-record promise whose terms are inconsistent with those later urged or by theplacement on the record of a statement by the pleading defendant that no other promises havebeen made to induce [the] guilty plea" (Matter of Benjamin S., 55 NY2d 116, 120 [1982];see People v Crowell, 130 AD3d1362, 1363 [2015], lv denied 26 NY3d 1144 [2016], cert denied 580 US&mdash, 137 S Ct 1333 [2017]; People v Huertas, 203 AD2d 952, 953 [1994],affd 85 NY2d 898 [1995]). Indeed, "once the terms of a plea bargaining agreement areplaced on the record, judicial recognition of additional promises or terms . . . willnot be forthcoming except in a rare case. Any other rule would serve only to undermine the goalof eliminating the secretiveness that has at times tended to surround the plea bargaining process"(Matter of Benjamin S., 55 NY2d at 121).
Here, the record reflects that, on February 4, 2014, defendant was offered the opportunity toplead guilty to attempted criminal possession of a weapon in the second degree in exchange for adeterminate sentence of no less than three years and no more than seven years—followedby five years of postrelease supervision—and a waiver of his right to appeal. Defendantunequivocally rejected that offer. Prior to the start of the suppression hearing on June 14, 2014,defense counsel advised the court that the People had once again extended that offer and,although stopping short of approving such offer, Supreme Court indicated its willingness torevisit the issue if defendant was interested in resolving the matter via a plea. Following adiscussion regarding defendant's potential sentencing exposure, as well as his potential status as apersistent felony offender, defendant again rejected the offer—stating that he was onlyinterested in accepting "the offer that they already presented"—an apparent reference tothe off-the-record offer allegedly made shortly after he was arrested. The People subsequentlyextended one final plea offer on the morning of trial, which defendant again rejected.
Simply put, the alleged off-the-record misdemeanor plea deal that defendant now seeks [*4]to enforce is flatly contradicted by the on-the-record plea offersextended in February 2014 and on the morning of trial. Additionally, nothing in the recordreflects that the purported off-the-record agreement ever received judicial approval (see People v Stevens, 64 AD3d1051, 1054 [2009], lv denied 13 NY3d 839 [2009]; People v Anonymous,283 AD2d 233, 233 [2001], lv denied 96 NY2d 898 [2001]; People v Huertas,203 AD2d at 953). Finally, we agree with Supreme Court that defendant was not placed in aposition of "no return" by virtue of the alleged off-the-record offer (see generally People v Sierra, 85 AD3d1659, 1659 [2011], lv denied 17 NY3d 905 [2011]). Accordingly, for all of thesereasons, Supreme Court did not abuse its discretion in denying defendant's motion without ahearing. Defendant's remaining contentions, including those raised in his pro se brief, have beenexamined and found to be lacking in merit.
McCarthy, J.P., Garry, Devine and Clark, JJ., concur. Ordered that the judgment and orderare affirmed.