| People v Sparbanie |
| 2018 NY Slip Op 01093 [158 AD3d 942] |
| February 15, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Walter M.Sparbanie Sr., Appellant. |
William T. Morrison, Albany, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Sophie J. Marmor of counsel), forrespondent.
Aarons, J. Appeals (1) from a judgment of the County Court of Chemung County (Hayden,J.), rendered November 24, 2014, convicting defendant upon his plea of guilty of the crime ofassault in the second degree, and (2) by permission, from an order of said court, entered June 23,2015, which denied defendant's motions pursuant to CPL 440.10 and 440.20 to vacate thejudgment of conviction and to set aside the sentence, without a hearing.
In May 2014, defendant was indicted and charged with one count of attempted assault in thefirst degree and one count of assault in the second degree. The charges stemmed from an incidentwherein defendant stabbed his then-girlfriend in the chest and thigh with a kitchen knife. Afterapparently rejecting an initial plea offer, defendant proceeded to trial on October 27, 2014.Following jury selection, County Court was informed that two Child Protective Servicescaseworkers recently had spoken with defendant at the local jail regarding a pending FamilyCourt matter and, during the course of that conversation, defendant allegedly made certaininculpatory statements relative to the criminal charges lodged against him. County Court,deeming the timing of the alleged statements to be "very troubling," effectively concluded thatsuch statements were inadmissible and warned the People that, if they elected to call thecaseworkers to testify, the court would declare a mistrial and dismiss the indictment. As a resultof the court's ruling, no Huntley hearing was held.
[*2] Defense counsel thereafter advised County Court that anopen plea agreement had been reached whereby defendant would plead guilty to one count ofassault in the second degree—with sentencing left to the discretion of County Court. Afterbeing apprised of the rights that he would be forfeiting by forgoing a jury trial, defendant pleadedguilty to one count of assault in the second degree and the matter was adjourned for sentencing.County Court thereafter sentenced defendant to a prison term of six years followed by five yearsof postrelease supervision (subsequently corrected to three years of postrelease supervision).Defendant then moved pro se to vacate the judgment of conviction pursuant to CPL 440.10 andto set aside the sentence pursuant to CPL 440.20. County Court denied the motions without ahearing, finding, among other things, that the corrected sentence imposed was authorized, lawfuland valid and that defendant's challenge to the voluntariness of his plea could be raised upon hisdirect appeal from the judgment of conviction and, hence, was not properly the subject of a CPL440.10 motion. Defendant now appeals from the judgment of conviction and, by permission,from the order denying his CPL article 440 motions.
We affirm. Defendant initially contends that his plea was not knowing, intelligent andvoluntary. Specifically, defendant argues that County Court's suppression ruling regarding thepurportedly inculpatory statements made to the caseworkers at the local jail, although undeniablyfavorable to defendant, as well as the court's corresponding failure to hold a Huntleyhearing, were erroneous. Hence, defendant's argument continues, when the open plea agreementsubsequently was proposed, he felt compelled to accept it immediately before County Courtcould reverse itself and allow the subject statements to be admitted into evidence at trial.
To the extent that defendant's coercion claim is based upon the plea colloquy itself, i.e., uponfacts that are apparent from the face of the record, defendant's challenge to the voluntariness ofhis plea is unpreserved for our review in the context of his direct appeal absent evidence of apostallocution motion to withdraw his plea (see CPL 220.60 [3]; People v Darrell, 145 AD3d 1316,1317 [2016], lv denied 29 NY3d 1125 [2017]; People v Oddy, 144 AD3d 1322, 1323 [2016], lv denied 29NY3d 1131 [2017]), and we discern no basis upon which to invoke the narrow exception to thepreservation requirement (see People v Oddy, 144 AD3d at 1323-1324; People v Lewis, 138 AD3d 1346,1347 [2016], lv denied 28 NY3d 1073 [2016]). In any event, defendant's coercionclaim—though novel—is unpersuasive.
A review of the plea colloquy confirms that, after being advised of the rights that he wouldbe forfeiting by pleading guilty and afforded additional time to confer with counsel, defendantunequivocally expressed his desire to go forward with the plea (see People v Broomfield, 128 AD3d1271, 1272 [2015], lv denied 26 NY3d 1086 [2015]) and thereafter engaged in adetailed factual allocution as to the conduct constituting the crime of assault in the second degree(cf. People v Charleston, 142 AD3d1248, 1249-1250 [2016]; People vTaylor, 135 AD3d 1237, 1237 [2016], lv denied 27 NY3d 1075 [2016]; People v Arnold, 102 AD3d 1061,1062 [2013]). At best, the pressure to which defendant now contends that he was subjected"amounts to the type of situational coercion faced by many defendants [who are] offered a pleadeal, and it does not undermine the voluntariness of defendant's guilty plea" (People v Colon, 122 AD3d 956,957 [2014] [internal quotation marks, brackets and citations omitted]; see People v Mills, 146 AD3d1173, 1175 [2017]). Defendant's related ineffective assistance of counsel claim isunpreserved for our review (see People v Broomfield, 128 AD3d at 1272).
To the extent that defendant's challenge to either the voluntariness or factual sufficiency ofhis plea is based upon matters outside of the record and, hence, is the proper subject of a CPL440.10 motion, we find that defendant's conclusory assertions, which were entirely "unsupported[*3]by any affidavits or documentary evidence" (People vDarrell, 145 AD3d at 1320), were insufficient to warrant a hearing (see CPL 440.30[1] [a]; [4] [b], [d]; People vLaPierre, 108 AD3d 945, 946 [2013]; People v Vallee, 97 AD3d 972, 974 [2012], lv denied 20NY3d 1104 [2013]). Additionally, even assuming—without deciding—thatdefendant's ineffective assistance of counsel claim consists of both record-based andnonrecord-based allegations, "thereby permitting review of his claim of ineffective assistance inits entirety" (People v Taylor, 156AD3d 86, 91 [2017]), we would find that defendant was afforded meaningful representation(see People v Oddy, 144 AD3d at 1324; People v Lewis, 138 AD3d at1348-1349)—particularly in view of the fact that counsel's primary alleged deficiencyconsisted of his failure to insist upon a Huntley hearing after County Court hadeffectively ruled in defendant's favor.
Finally, as for defendant's motion to set aside his corrected sentence, the periods ofincarceration and postrelease supervision imposed fell within the statutory parameters for aviolent class D felony (see Penal Law §§ 70.02 [1] [c]; [2] [c]; [3] [c];70.45 [2] [e]; 120.05 [2]), and defendant failed to establish that the sentence was "unauthorized,illegally imposed or otherwise invalid as a matter of law" (CPL 440.20 [1]; see People v Williamson, 72 AD3d1339, 1339 [2010], lv denied 15 NY3d 779 [2010]). Accordingly, defendant'smotion to set aside the sentence pursuant to CPL 440.20 was properly denied. Defendant'sremaining contentions have been examined and found to be lacking in merit.
Garry, P.J., Clark, Mulvey and Pritzker, JJ., concur. Ordered that the judgment and order areaffirmed.