| People v Guynup |
| 2018 NY Slip Op 01961 [159 AD3d 1223] |
| March 22, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v JasonGuynup, Appellant. |
Mark Diamond, Albany, for appellant.
Joel E. Abelove, District Attorney, Troy (Vincent J. O'Neill of counsel), for respondent.
Aarons, J. Appeals (1) from a judgment of the County Court of Rensselaer County (Ceresia,J.), rendered August 26, 2013, convicting defendant upon his plea of guilty of the crime ofmurder in the second degree, and (2) by permission, from a order of said court (Young, J.),entered February 10, 2017, which denied defendant's motion pursuant to CPL 440.10 to vacatethe judgment of conviction, without a hearing.
In full satisfaction of a nine-count indictment, defendant pleaded guilty to murder in thesecond degree in exchange for a prison term of 20 years to life. The indictment stemmed from anincident in which defendant—while the victim's sister, defendant's two young children andanother child were present in the victim's home—stabbed the victim (his girlfriend) todeath with a knife. As part of the plea agreement, defendant was required to waive his right toappeal and full, final, stay-away orders of protection would be issued against defendant in favorof, among others, his two children. Consistent with the terms of the plea agreement, defendantsubsequently pleaded guilty to murder in the second degree, and County Court (Ceresia, J.)sentenced defendant to the agreed-upon prison term. Defendant then filed a pro se motionpursuant to CPL 440.10 to vacate his conviction upon the ground that he had received theineffective assistance of counsel. County Court (Young, J.) denied the motion without a hearing.Defendant now appeals from the judgment of conviction and, by permission, from the orderdenying his CPL article 440 motion.
Regardless of the validity of defendant's waiver of the right to appeal (see People v [*2]Leach, 26 NY3d 1154, 1154 [2016]; People v Byrne, 37 AD3d 179, 180[2007]), his challenge to the factual sufficiency of his plea is unpreserved for our review absentevidence of an appropriate postallocution motion (see People v Smith, 155 AD3d 1244, 1245 [2017]; People v Terrell, 123 AD3d 1341,1341-1342 [2014], lv denied 25 NY3d 953 [2015]), and the narrow exception to thepreservation requirement was not triggered (see People v Mydosh, 117 AD3d 1195, 1196 [2014], lvdenied 24 NY3d 963 [2014]; Peoplev Durham, 110 AD3d 1145, 1145 [2013]). Additionally, notwithstanding the fact thatthe indictment contained a clerical error,[FN*] the record makes clear that defendant wascharged with and pleaded guilty to intentional murder (see People v Jackson, 128 AD3d 1279, 1279-1280 [2015], lvdenied 26 NY3d 930 [2015]), and such error did not deprive defendant of fair notice of thecharge against him (see id. at 1279-1280; People v Ashley, 89 AD3d 1283, 1285 [2011], lv denied 18NY3d 955 [2012]; People vSterling, 27 AD3d 950, 951-952 [2006], lv denied 6 NY3d 898 [2006]). Finally,defendant's challenge to the permanent orders of protection entered in favor of, among others, hischildren is unpreserved for our review given defendant's failure to make a timely objection beforethe sentencing court or move to amend the orders (see People v Nieves, 2 NY3d 310, 316-317 [2004]; People v White, 144 AD3d 1057,1058 [2016], lv denied 29 NY3d 953 [2017]; People v McCoy, 107 AD3d 1454, 1454-1455 [2013], lvdenied 22 NY3d 957 [2013]; Peoplev Decker, 77 AD3d 675, 675 [2010], lv denied 15 NY3d 952 [2010]), and wedecline defendant's request to take corrective action in the interest of justice.
Defendant's related challenge to the voluntariness of his plea—an assertion that arisesin the context of his CPL 440.10 motion and is premised upon the ineffective assistance ofcounsel—is equally unavailing. Preliminarily, we cannot say that County Court erred indenying defendant's motion without a hearing (see CPL 440.30 [4] [d]). The affidavittendered by defendant's mother in support of the motion, wherein she purports to attest to whattranspired during conversations between defendant and counsel, is devoid of evidentiary value;nowhere in the affidavit does defendant's mother state that she was present for suchconversations and, hence, her affidavit is premised largely upon hearsay (see generally People v Jimenez, 142AD3d 149, 156 [2016]). Accordingly, County Court was left with nothing but defendant'sself-serving assertions that he was denied the effective assistance of counsel (see People v Lewis, 138 AD3d1346, 1349 [2016], lv denied 28 NY3d 1073 [2016]).
"In the context of a guilty plea, a defendant has been afforded meaningful representationwhen he or she receives an advantageous plea and nothing in the record casts doubt on theapparent effectiveness of counsel" (People v Brown, 154 AD3d 1004, 1006 [2017] [internal quotationmarks and citations omitted]; accordPeople v Watson, 152 AD3d 1059, 1059 [2017], lv denied 30 NY3d 954 [2017];People v Driscoll, 147 AD3d1157, 1158 [2017], lv denied 29 NY3d 1078 [2017]). Here, defense counsel's firmmade appropriate pretrial motions (see People v Brown, 154 AD3d at 1006) and counselsecured an advantageous plea for defendant (see People v Rapp, 154 AD3d 1007, 1009 [2017]). Defendant alsoindicated during his plea colloquy that he had been afforded sufficient time to confer withcounsel and was satisfied with counsel's services. Defendant's belated assertion that he had aviable intoxication or extreme emotional disturbance defense that, in turn, defense counsel failedto adequately discuss or explore, is premised upon unsubstantiated comments made by defendantduring his presentence interview with the Probation Department, wherein defendant claimed thathe was unable to recall [*3]much of what had transpired on thenight of the murder due to ingesting a combination of Xanax, alcohol and marihuana. Althoughsubsequent testing did reveal that defendant had certain drugs in his system on the night inquestion, such proof falls short of establishing that defendant possessed—and counselignored—a viable intoxication defense (see People v Robetoy, 48 AD3d 881, 882-883 [2008]); we reach asimilar conclusion with respect to defendant's claim that his claimed depression and anxiety gaverise to a viable extreme emotional disturbance defense. Defendant's remaining arguments, to theextent not specifically addressed, have been examined and found to be lacking in merit.
Egan Jr., J.P., Lynch, Mulvey and Pritzker, JJ., concur. Ordered that the judgment and orderare affirmed.
Footnote *:The indictment, whichincorrectly referenced Penal Law § 125.25 (2), depraved indifference murder, ratherthan Penal Law § 125.25 (1), intentional murder, nonetheless accused defendant ofcausing the victim's death with the intent to do so.