| People v Mangarillo |
| 2017 NY Slip Op 05872 [152 AD3d 1061] |
[*1]
| 1 The People of the State of New York,Respondent, v Michael C. Mangarillo, Appellant. |
Mark Schneider, Plattsburgh, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jeffrey Kehm of counsel), forrespondent.
Lynch, J. Appeals (1) from a judgment of the County Court of Clinton County (McGill, J.),rendered June 18, 2014, convicting defendant upon his plea of guilty of the crimes of sexualabuse in the first degree and criminal sexual act in the second degree, and (2) by permission,from an order of said court, entered February 25, 2016, which denied defendant's motionpursuant to CPL 440.10 to vacate the judgment of conviction, after a hearing.
In 2013, the victim, who is autistic, made detailed allegations that a male relative hadsexually abused her on numerous occasions during a visit to his residence in the summer of 2012,when she was 11 years old and he was 54 years old. Defendant was charged by felony complaintwith predatory sexual assault against a child, sexual abuse in the first degree and criminal sexualact in the second degree. Defendant thereafter waived indictment and agreed to be prosecuted bya superior court information charging sexual abuse in the first degree and criminal sexual act inthe second degree, and pleaded guilty to those charges. Pursuant to the plea agreement, whichincluded a waiver of appeal, County Court imposed consecutive prison terms of six years foreach conviction, with 10 years of postrelease supervision. Defendant thereafter moved, pursuantto CPL 440.10, to vacate the judgment of conviction. Following an evidentiary hearing, the courtdenied the motion in a lengthy decision. Defendant now appeals from the judgment of convictionand, with permission, from the order denying his postconviction motion.
Defendant's primary contention on his direct appeal, that consecutive sentences were not[*2]authorized, constitutes a challenge to the legality of thesentence, which survives his guilty plea and appeal waiver (see People v Pacherille, 25 NY3d 1021, 1023 [2015]; People vSeaberg, 74 NY2d 1, 9-10 [1989]; People v Guzman-Moore, 144 AD3d 1267, 1268 [2016], lvdenied 29 NY3d 949 [2017]). Pursuant to Penal Law § 70.25 (2), "sentencesimposed for two or more offenses may not run consecutively: (1) where a single act constitutestwo offenses, or (2) where a single act constitutes one of the offenses and a material element ofthe other" (People v Brahney, 29NY3d 10, 14 [2017] [internal quotation marks and citation omitted]). Thus, "to determinewhether consecutive sentences are permitted, a court must first look to the statutory definitions ofthe crimes at issue to discern whether the actus reus elements overlap" (People v Rodriguez, 25 NY3d 238,244 [2015] [internal quotation marks, brackets and citation omitted]). "[E]ven if the statutoryelements do overlap under either prong of the statute, the People may yet establish the legality ofconsecutive sentencing by showing that the acts or omissions committed by [the] defendant wereseparate and distinct acts" (People v Brahney, 29 NY3d at 14-15 [internal quotationmarks, brackets and citations omitted]; see People v Couser, 28 NY3d 368, 375-376 [2016]).
Here, defendant pleaded guilty to sexual abuse in the first degree, admitting that he subjectedthe victim, a person under the age of 13, to "sexual contact" (Penal Law § 130.65[4]), which is broadly defined as "any touching of the sexual or other intimate parts of a personfor the purpose of gratifying sexual desire of either party" (Penal Law § 130.00 [3]).Defendant also pleaded guilty to criminal sexual act in the second degree, which, as charged,required that, being over the age of 18, he engaged in "oral sexual conduct" with a person underthe age of 15 (Penal Law § 130.45 [1]). Where, as here, defendant pleads guilty totwo counts in an accusatory instrument, the People were entitled to demonstrate that the actsunderlying the crimes were separate and distinct only by reference to the factual allegations in theaccusatory instrument and the facts admitted during the allocution (see People v Dean, 8 NY3d 929,930-931 [2007]; People v Laureano, 87 NY2d 640, 644 [1996]; People v Pardy, 113 AD3d 1003,1003 [2014]). Although our decision in People v Lamica (95 AD3d 1565 [2012]) suggests that the factsrequired for consecutive sentences may be discerned from an admission reportedly made during apresentence investigation or the victim's statement to police, that holding should no longer befollowed. Nor may the People rely on the underlying felony complaints to establish a factualbasis for consecutive sentencing because the operative point here is that defendant pleaded guiltyto the superior court information, which has the same force and effect as an indictment(see CPL 195.20 [d]; 200.15).
Importantly, both counts in the superior court information alleged that the acts occurredduring the same time frame (between July 1, 2012 and July 31, 2012), neither count containedallegations about the specific acts constituting the crime, and there is no bill of particularsnarrowing the specific type of sexual contact or sexual conduct alleged under either count(see CPL 200.95 [1]). Likewise, the plea allocution did not include admissions orparticularity as to the acts committed that qualify as sexual contact or oral sexual conduct (cf. People v Howland, 130 AD3d1105, 1105 [2015], lv denied 26 NY3d 1089 [2015]). Given that the term "sexualcontact" is broad enough to include all forms of "oral sexual conduct" (see People v Colsrud, 144 AD3d1639, 1640 [2016], lv denied 29 NY3d 1030 [2017]; People v Baker, 123 AD3d 1378,1380 [2014]), the actus reus element could be the same for both offenses, that is, the same actcould satisfy both crimes. As no specific date and time for each crime were alleged in thesuperior court information or plea allocution, and neither included underlying facts or allegedacts that were separate and distinct, consecutive sentences were not authorized (see People vDean, 8 NY3d at 931; cf. People vWoods, 141 AD3d 954, 956 [2016], lv denied 28 NY3d 1076 [2016]). Since thePeople did not request vacatur of defendant's guilty plea, we will not consider whether that wouldbe a proper remedy and conclude that the judgment must be modified to [*3]order that the sentences run concurrently (see People vLaureano, 87 NY2d at 645). Defendant's further claim that the sentence is harsh andexcessive and should be reduced is precluded by his knowing, voluntary and intelligent appealwaiver (see People v Lopez, 6NY3d 248, 256 [2006]).
Next, defendant contends that County Court erred in denying his motion to vacate thejudgment pursuant to CPL 440.10, which was based upon, among other grounds,[FN1] the People's alleged failure todisclose evidence pursuant to Brady v Maryland (373 US 83 [1963]) that could have beenused to impeach the victim's credibility (see CPL 440.10 [1] [h]).[FN2] This claim concerns a police investigationreport that contained a notation of statements reportedly made by the victim to friends at summercamp that were ultimately conveyed to a child protective worker and police. The report noted thatthe victim told her friends that defendant had subjected her to specific acts of sexual abuse and"also told her friends that she was joking, and not to tell anyone."
Brady is premised upon "[d]ue process[, which] requires that the People disclose tothe defendant any evidence in their possession that is material to guilt or punishment" (People v Lewis, 125 AD3d 1109,1110 [2015] [internal quotation marks and citation omitted]; see Brady v Maryland, 373US at 87). "To establish a Brady violation, a defendant must show that (1) the evidence isfavorable to the defendant because it is either exculpatory or impeaching in nature; (2) theevidence was suppressed by the prosecution; and (3) prejudice arose because the suppressedevidence was material" (People vFuentes, 12 NY3d 259, 263 [2009] [citation omitted]; see People v Fisher, 28 NY3d 717,722 [2017]). County Court correctly concluded that, while the statement had impeachment value,defendant failed to demonstrate that it was suppressed by the People or that he was prejudicedthereby. The assigned Assistant District Attorney (hereinafter ADA) testified that, during pleanegotiations, she played a video of the interview of the victim recounting the sexual abuse fordefense counsel, at which time she also provided counsel with the medical report and searchwarrant application to review, and the materials attached to the warrant application included thereport in issue containing the Brady remarks. While that ADA and the ADA whoappeared for the plea proceedings testified that they were not aware of and had not closely readthe report in question, they were adamant that the People had not suppressed it. Defense counseltestified that he did not recall being provided with this report when he viewed the video and didnot believe that he had ever seen it, but acknowledged that it was possible. We defer to CountyCourt's determination to credit the testimony of both ADAs, which established that the Peopleprovided the material and did not [*4]suppress it (see People vSeeber, 94 AD3d at 1336; People vFeerick, 7 AD3d 267, 268 [2004], lvs denied 3 NY3d 674, 680, 681 [2004]; see also People v Garrett, 23 NY3d878, 886-887 [2014]).
With regard to defendant's burden of demonstrating prejudice under the third prong of thetest, there was no formal discovery here and the defense made no specific request for thedocument in issue. Accordingly, "materiality can only be demonstrated by a showing that there isa reasonable probability that it would have changed the outcome of the proceedings" (Peoplev Fuentes, 12 NY3d at 263 [internal quotation marks omitted]; see People v Garrett,23 NY3d at 891). While the statement could potentially have been used to discredit the victim, itis significant that it constitutes multiple hearsay, that an abuse victim's fear of the consequencesfollowing disclosure could have been readily explained, and that the victim provided detailedaccounts to police of the sexual abuse—deemed highly credible by the People and defensecounsel—which defendant admitted during the plea allocution. Also, the search ofdefendant's residence uncovered a specific instrument used in the abuse that the victim haddescribed to police. Defense counsel testified, confirming that he had viewed the victim'smedical report and video interview, which he characterized as "disturbing and compelling," andthat he had advised defendant that the victim's testimony would be "extremely damaging" to thedefense and that he "strongly recommended" accepting what he believed to be a "very good" pleaoffer. It is also notable that "recantation evidence is viewed as an 'extremely unreliable form ofevidence' " (People v Howe,150 AD3d 1321, 1323 [2017], quoting People v Larock, 139 AD3d 1241, 1243 [2016], lv denied28 NY3d 932 [2016]). Given the foregoing and that defendant was aware that he faced potentiallife sentencing on class A-II felonies and other charges if he were indicted (see Penal Law§§ 70.00 [2] [a]; 130.96), and that County Court found "incredible" histestimony that he lied during the plea proceedings and probation interview and would not haveaccepted the plea deal had he known of this fleeting statement, we agree with the court'sconclusion that there was no reasonable probability that defendant would not have pleaded guiltyhad the statement been disclosed to him (see People v Drossos, 291 AD2d 723, 724[2002]; cf. People v Wagstaffe, 120AD3d 1361, 1364-1365 [2014], lvs denied 25 NY3d 1161, 1173 [2015]).
We are similarly unpersuaded by defendant's claim that his plea should be vacated on theground that he was denied the effective assistance of counsel under federal and state law, in thatdefense counsel failed to discover, or withheld, the Brady material. Under the federalstandard, in "th[is] plea context, the defendant must show that there is a reasonable probabilitythat, but for counsel's errors, he would not have pleaded guilty and would have insisted on goingto trial" (People v Hernandez, 22NY3d 972, 975 [2013] [internal quotation marks and citation omitted], cert denied572 US &mdash, 134 S Ct 1900 [2014]; accord People v Lawrence, 148 AD3d 1472, 1474 [2017]). Even ifcounsel's performance was deficient based upon the failure to recognize and disclose theBrady material to defendant, for reasons discussed, defendant failed to make thisshowing. Under the state standard, "[s]o long as the evidence, the law, and the circumstances of aparticular case, viewed in totality and as of the time of the representation, reveal that the attorneyprovided meaningful representation, the constitutional requirement will have been met"(People v Baldi, 54 NY2d 137, 147 [1981]; see People v Clark, 28 NY3d 556, 562-563 [2016]). Viewing theoverall performance of counsel and efforts to evaluate the strength of the evidence at thepreindictment stage, and considering the compelling evidence of guilt and the advantageous pleaagreement that avoided more serious charges that carried potential life sentences, we find thatdefendant received meaningful representation (see id.; People v Taylor, 144 AD3d 1317,1319 [2016], lv denied 28 NY3d 1151 [2017]).
We have considered defendant's remaining contentions and determined that none has [*5]merit.
Egan Jr., J.P., and Aarons, J., concur.
Clark, J. (concurring in part and dissenting in part). We disagree with the majority'sconclusion that the legality of the consecutive sentences to which defendant agreed cannot beestablished by looking to the allegations in the underlying sworn felony complaints, where, ashere, defendant waived indictment and agreed to be prosecuted by a superior court information(hereinafter SCI). Accordingly, insofar as the majority modifies the sentence imposed upondefendant, we respectfully dissent.
As explained by the majority, in determining whether consecutive sentences may be lawfullyimposed, courts must first look to the statutory definitions of the crimes of which the defendanthas been convicted to "determine whether the actus reus element is, by definition, thesame for both offenses . . . , or if the actus reus for one offense is, bydefinition, a material element of the second offense" (People v Laureano, 87 NY2d 640,643 [1996]; see Penal Law § 70.25 [2]; People v Couser, 28 NY3d 368, 375 [2016]). Even if the statutoryelements overlap, the People may nevertheless satisfy their obligation of establishing the legalityof consecutive sentences "by showing that the acts or omissions committed by [the] defendantwere separate and distinct acts" (People v Laureano, 87 NY2d at 643 [internal quotationmarks omitted]; see People v Dean,8 NY3d 929, 930-931 [2007]). The Court of Appeals has held that, in the plea context, thePeople may rely on the allegations in the indictment and the facts adduced at the plea allocutionto demonstrate that the acts or omissions were separate and distinct acts, so long as the defendanthas pleaded guilty to one or more counts alleged in the indictment (see People v Dean, 8NY3d at 931; People v Laureano, 87 NY2d at 644; People ex rel. Maurer vJackson, 2 NY2d 259, 265 [1957]). "Where [the] defendant has been convicted upon a pleato a lesser offense than that charged in the indictment, the People may rely only on those factsand circumstances admitted during the plea allocution" (People v Laureano, 87 NY2d at644 [citation omitted]; see People v Griffin, 7 NY2d 511, 515 [1960]).
The Court of Appeals has not affirmatively stated that sentencing courts may, in addition tothe facts and circumstances admitted during the plea allocution, look to the allegations in othertypes of accusatory instruments to determine whether the acts or omissions underlying theconvictions were separate and distinct. However, the Third Department, as well as the SecondDepartment, has held that the People may rely on the information in the SCI to satisfy theirburden of establishing that the underlying acts or omissions were separate and distinct (see People v Guzman-Moore, 144AD3d 1267, 1268 [3d Dept 2016], lv denied 29 NY3d 949 [2017]; People v Woods, 141 AD3d 954,956 [3d Dept 2016], lv denied 28 NY3d 1076 [2016]; People v Bullip, 59 AD3d 561, 561-562 [2d Dept 2009], lvdenied 12 NY3d 814 [2009]; seealso People v Pardy, 113 AD3d 1003, 1003 [3d Dept 2014]).
In our view, where indictment has been waived and the defendant consents to prosecution byway of an SCI (see CPL 195.10), the People should be entitled to rely on the swornfelony complaint—statutorily defined as an accusatory instrument (see CPL 1.20[1])—to establish that the subject crimes are separate and distinct, so long as one or moreof the charges in the SCI and the felony complaint are the same. Here, the record demonstratesthat, upon divestiture, the local criminal court transmitted, among other things, the underlyingsworn felony [*6]complaints to County Court (see CPL180.30). Thus, at the time that defendant knowingly, voluntarily and intelligently waivedindictment, agreed to be prosecuted by an SCI and pleaded guilty to the SCI, County Court, aswell as the parties, were aware that the crimes charged in the SCI were the same as those allegedin the corresponding felony complaints and that the felony complaints established that the actusreus of each of the charged offenses were separate and distinct. In particular, the felonycomplaints accused defendant of sexual abuse in the first degree for "insert[ing] his fingers intothe [victim's] vagina" and criminal sexual act in the second degree for forcing the victim to"perform oral sex on him." Inasmuch as the felony complaints clearly provide the factual basis toconclude that the acts to which defendant pleaded guilty were separate and distinct, we find thatthe consecutive sentences imposed upon—and agreed to by—defendant are lawful.In view of the foregoing, and because we agree with the majority that the remainder ofdefendant's arguments lack merit, we would affirm the judgment of conviction and theorder.
Devine, J., concurs. Ordered that the judgment is modified, on the law, by directing thatdefendant's sentences shall run concurrently rather than consecutively, and, as so modified,affirmed.
Ordered that the order is affirmed.
Footnote 1:To the extent that the motionwas premised upon newly discovered evidence (see CPL 440.10 [1] [g]), it was properlydenied as this ground is only available where the conviction was obtained following a trial (see People v Seeber, 94 AD3d1335, 1336 [2012]).
Footnote 2:The claimed Bradyviolation was not waived by defendant's guilty plea (see People v Ortiz, 127 AD2d 305,308 [1987], lv denied 70 NY2d 652 [1987]). While defendant's appeal waiver included awaiver of the right to "postconviction remedies or [CPL article] 440 motions," the People did notargue in County Court that defendant's motion to vacate was precluded by that waiver or addresswhether it encompassed defendant's specific claims, and the parties do not address this issue onappeal. Accordingly, we decline to do so.