| People v Kates |
| 2018 NY Slip Op 04464 [162 AD3d 1627] |
| June 15, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Alexander Kates, Appellant. (Appeal No. 1.) |
Catherine H. Josh, Rochester, for defendant-appellant.
Alexander Kates, defendant-appellant pro se.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Douglas A. Randall, J.), renderedJune 2, 2015. The judgment convicted defendant, upon his plea of guilty, of kidnapping in thesecond degree.
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 hisplea of guilty of kidnapping in the second degree (Penal Law § 135.20). The pleasatisfied several charges arising from an incident in which defendant, in concert with two othermen, among other things, bound and threatened three family members inside their ownapartment, obtained keys and the alarm code to the victims' jewelry store, and then stole jewelryfrom the store. In appeal No. 2, defendant appeals by permission of this Court from an order that,inter alia, denied his motion pursuant to CPL 440.10 seeking to vacate the judgment ofconviction. We affirm in both appeals.
Addressing first the judgment in appeal No. 1, although defendant contends in his pro sesupplemental brief that the felony complaints were jurisdictionally defective, "[t]he felonycomplaint[s were] superseded by the indictment to which defendant pleaded guilty, and hetherefore may not challenge the felony complaint[s]" on appeal (People v Anderson, 90 AD3d1475, 1477 [4th Dept 2011], lv denied 18 NY3d 991 [2012]; see People v Mitchell, 132 AD3d1413, 1416 [4th Dept 2015], lv denied 27 NY3d 1072 [2016]).
Contrary to defendant's contention in his pro se supplemental brief, the record establishesthat his waiver of the right to appeal was knowing, intelligent, and voluntary (see People v Joubert, 158 AD3d1314, 1315 [4th Dept 2018], lv denied 31 NY3d 1014 [2018]; People v Smith, 138 AD3d 1497,1497 [4th Dept 2016], lv denied 27 NY3d 1139 [2016]; see generally People v Lopez, 6 NY3d248, 256 [2006]). We conclude that the valid waiver of the right to appeal forecloses ourreview of defendant's challenges in his main brief to County Court's adverse suppression ruling(see People v Sanders, 25 NY3d337, 342 [2015]; People v Kemp, 94 NY2d 831, 833 [1999]). Defendant furthercontends in his pro se supplemental brief that he was arrested without probable cause and thusthat the court should have granted that part of his motion seeking suppression of all evidenceobtained as a result of his arrest. That contention is also encompassed by his valid waiver of theright to appeal (see Sanders, 25 NY3d at 342; Kemp, 94 NY2d at 833) and,moreover, defendant forfeited the right to raise that suppression issue on appeal inasmuch as hepleaded guilty before the court issued a ruling thereon (see People v Fernandez, 67 NY2d686, 688 [1986]; People v Russell,128 AD3d 1383, 1384 [4th Dept 2015], lv denied 25 NY3d 1207[2015]).
[*2] We reject defendant's contention inhis main brief that the court failed to make an appropriate inquiry into his request for substitutionof his assigned counsel, which he made during an appearance prior to the plea proceeding.Defendant's contention " 'is encompassed by the plea and the waiver of the right toappeal except to the extent that the contention implicates the voluntariness of the plea' "(People v Morris, 94 AD3d1450, 1451 [4th Dept 2012], lv denied 19 NY3d 976 [2012]; see People v Guantero, 100 AD3d1386, 1387 [4th Dept 2012], lv denied 21 NY3d 1004 [2013]). Defendantnonetheless "abandoned his request for new counsel when he 'decid[ed] . . . to pleadguilty while still being represented by the same attorney' " (Guantero, 100 AD3dat 1387; see Morris, 94 AD3d at 1451). In any event, defendant's contention lacks meritinasmuch as the record establishes that "the court made a sufficient inquiry into defendant'scomplaints concerning the alleged [breakdown in] communication between defendant anddefense counsel. The court repeatedly allowed defendant to air his concerns about defensecounsel, and after listening to them reasonably concluded that defendant's vague and genericobjections had no merit or substance . . . , and thus defendant's objections wereinsufficient to demonstrate good cause for substitution of counsel" (People v Larkins, 128 AD3d 1436,1441 [4th Dept 2015], lv denied 27 NY3d 1001 [2016] [internal quotation marksomitted]; see People v Linares, 2NY3d 507, 510-511 [2004]). " '[A]t most, defendant's allegations evinceddisagreements with counsel over strategy . . . , which were not sufficient grounds forsubstitution' " (Larkins, 128 AD3d at 1440; see Linares, 2 NY3d at511).
Defendant further contends in his main brief that his plea was not voluntarily entered becausehe was not informed of its direct consequences prior to pleading guilty. We reject that contention."It is well settled that, in order for a plea to be knowingly, voluntarily and intelligently entered, adefendant must be advised of the direct consequences of that plea" (People v Jones, 118 AD3d 1360,1361 [4th Dept 2014]; see People vHarnett, 16 NY3d 200, 205 [2011]; People v Catu, 4 NY3d 242, 244 [2005]). "The direct consequencesof a plea—those whose omission from a plea colloquy makes the plea per seinvalid—are essentially the core components of a defendant's sentence: a term of probationor imprisonment, a term of postrelease supervision, a fine" (Harnett, 16 NY3d at 205).Here, although defendant's contention concerning the voluntariness of the plea survives his validwaiver of the right to appeal (see Peoplev Neal, 148 AD3d 1699, 1699-1700 [4th Dept 2017], lv denied 29 NY3d 1084[2017]), preservation was required inasmuch as defendant was advised of the sentence, includingits period of postrelease supervision, during the plea proceeding, and defendant failed to preservehis contention for our review because he did not move to withdraw the plea on that ground orotherwise object to the imposition of the sentence (see People v Williams, 27 NY3d 212, 219-223 [2016]; People v Crowder, 24 NY3d 1134,1136-1137 [2015]; People vMurray, 15 NY3d 725, 726-727 [2010]; cf. People v Louree, 8 NY3d 541, 545-546 [2007]). In any event,we conclude that defendant's challenge to the voluntariness of the plea is without merit inasmuchas the record establishes that he was advised during the plea proceeding of the directconsequences of his plea, including the term of imprisonment and period of postreleasesupervision (see People v Munn,105 AD3d 1456, 1456 [4th Dept 2013], lv denied 21 NY3d 1007 [2013], deniedreconsideration 22 NY3d 1042 [2013]; People v Ivey, 98 AD3d 1230, 1231 [4th Dept 2012], lvdenied 20 NY3d 1012 [2013]; People v McPherson, 60 AD3d 872, 872 [2d Dept 2009]).
To the extent that defendant challenges the factual sufficiency of his plea allocution in hispro se supplemental brief, that challenge is encompassed by the valid waiver of the right toappeal (see People v Busch, 60AD3d 1393, 1394 [4th Dept 2009], lv denied 12 NY3d 913 [2009]). Althoughdefendant's further contention in his pro se supplemental brief that his plea was involuntarysurvives his waiver of the right to appeal (see People v Seaberg, 74 NY2d 1, 10 [1989]),defendant failed to preserve that contention for our review inasmuch as he did not move towithdraw his plea or to vacate the judgment of conviction on the grounds now raised on appeal(see People v VanDeViver, 56AD3d 1118, 1118 [4th Dept 2008], lv denied 11 NY3d 931 [2009], deniedreconsideration 12 NY3d 788 [2009]), and this case does not fall within the narrowexception to the preservation requirement (see People v Lopez, 71 NY2d 662, 666[1988]).
With respect to the judgment in appeal No. 1, defendant contends in his pro se supplementalbrief that the record establishes that he was denied effective assistance of counsel. With respectto the order in appeal No. 2, defendant contends in his main and pro se supplemental briefs thatthe court should have granted his motion pursuant to CPL 440.10 to [*3]vacate the judgment because the plea was infected by ineffectiveassistance of counsel and was otherwise involuntary or, at minimum, that he is entitled to ahearing thereon. We reject those contentions.
"Where, as here, a defendant contends that he or she was denied the right to effectiveassistance of counsel guaranteed by both the Federal and New York State Constitutions, weevaluate the claim using the state standard, which affords greater protection than its federalcounterpart" (People v Conway, 148AD3d 1739, 1741 [4th Dept 2017], lv denied 29 NY3d 1077 [2017]; see People v Stultz, 2 NY3d 277,282 [2004], rearg denied 3 NY3d 702 [2004]). Under the state standard, "[s]o 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, theconstitutional requirement will have been met" (People v Baldi, 54 NY2d 137, 147[1981]; see People v Benevento, 91 NY2d 708, 712 [1998]). "In the context of a guiltyplea, a defendant has been afforded meaningful representation when he or she receives anadvantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel"(People v Ford, 86 NY2d 397, 404 [1995]; see People v Hoyer, 119 AD3d 1457, 1458 [4th Dept 2014]).Inasmuch as defendant "bears the burden of establishing his [or her] claim that counsel'sperformance is constitutionally deficient[,] . . . defendant must demonstrate theabsence of strategic or other legitimate explanations for counsel's alleged failure[s]" (People v Pavone, 26 NY3d 629,646 [2015]; see People v Satterfield, 66 NY2d 796, 799-800 [1985]).
Here, to the extent that defendant's contention in appeal No. 1 in his pro se supplementalbrief that he was denied effective assistance of counsel survives the plea and his valid waiver ofthe right to appeal (see People vRausch, 126 AD3d 1535, 1535 [4th Dept 2015], lv denied 26 NY3d 1149[2016]), we conclude that his contention lacks merit (see generally Ford, 86 NY2d at404).
Addressing the order in appeal No. 2, we conclude that the court properly determined thatdefendant received meaningful representation. Defense counsel, among other things, successfullysought suppression of significant evidence against defendant and negotiated an advantageousplea bargain that greatly reduced defendant's maximum sentencing exposure of 25 years to lifeimprisonment had he been convicted of the top count of kidnapping in the first degree (PenalLaw § 135.25 [2] [b]; see § 70.00 [2] [a]; [3] [a] [i]), andnothing in the record casts doubt on the apparent effectiveness of defense counsel (see People v Lewis, 138 AD3d1346, 1348-1349 [3d Dept 2016], lv denied 28 NY3d 1073 [2016]; People vLoomis, 256 AD2d 808, 808 [3d Dept 1998], lv denied 93 NY2d 854 [1999]).
The court also properly denied defendant's motion pursuant to CPL 440.10 without a hearingbecause, "given the nature of the claimed ineffective assistance, the motion could be determinedon the trial record and defendant's submissions on the motion" (Satterfield, 66 NY2d at799; see People v Witkop, 114AD3d 1242, 1243 [4th Dept 2014], lv denied 23 NY3d 1069 [2014]). Defendantasserted in his supporting affidavit that defense counsel was ineffective because, despitedefendant's requests, defense counsel failed to investigate certain items of allegedly exculpatoryevidence. Although it is well settled that a "defendant's right to representation . . .entitle[s] him [or her] to have counsel 'conduct appropriate investigations, both factual and legal,to determine if matters of defense can be developed, and to allow himself [or herself] time forreflection and preparation for trial' " (People v Bennett, 29 NY2d 462, 466[1972]; see People v Oliveras, 21NY3d 339, 346-347 [2013]), it is also well settled that a claim of ineffective assistance"requires proof of less than meaningful representation, rather than simple disagreement withstrategies and tactics" (People v Rivera, 71 NY2d 705, 708-709 [1988]). Defendant'ssupporting affidavit demonstrated that defense counsel addressed with defendant the issuewhether an investigation into the allegedly exculpatory evidence would be fruitful and expressedhis opinion that such evidence was not relevant or could be used by the prosecution againstdefendant. Inasmuch as the record established that defense counsel, as a matter of strategy andtactics, exercised professional judgment in declining to pursue evidence that he consideredunhelpful and potentially harmful to the defense (see People v Schramm, 172 AD2d1048, 1048 [4th Dept 1991], lv denied 78 NY2d 974 [1991]), the court properlydetermined that defendant failed to demonstrate the absence of a strategic or other legitimateexplanation for defense counsel's alleged failure to investigate, and that defendant's meredisagreement with the investigation strategy was insufficient to establish that defense counselwas ineffective (see People vMcCullough, 144 AD3d 1526, 1527 [4th Dept 2016], lv denied 29 [*4]NY3d 999 [2017]).
Defendant further contends in his pro se supplemental brief that, as alleged in his motion,defense counsel failed to advise him at the time of the plea that he would be required to sign adocument at sentencing admitting his status as a predicate felon. The court properly concluded,however, that defendant conceded in his supporting affidavit that he was aware that the pleabargain required that he acknowledge being previously convicted of a felony, and that any failureby defense counsel to explain that defendant would also have to sign a document to that effectdoes not constitute ineffective assistance.
Contrary to defendant's further contention in his pro se supplemental brief, the court properlydetermined that documentary proof submitted by defendant conclusively refuted defendant'sclaim that the plea was involuntary because it was induced by an unfulfilled promise (seeCPL 440.30 [4] [c]).
We have considered defendant's remaining contentions in his pro se supplemental brief andconclude that they are without merit. Present—Whalen, P.J., Centra, Peradotto, Troutmanand Winslow, JJ.