| People v Lamb |
| 2018 NY Slip Op 04781 [162 AD3d 1395] |
| June 28, 2018 |
| Appellate Division, Third Department |
[*1](June 28, 2018)
| The People of the State of New York,Respondent, v Richard Lamb, Appellant. |
Noreen McCarthy, Keene Valley, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Joseph A. Frandino of counsel), forrespondent.
Aarons, J. Appeals (1) from a judgment of the County Court of Washington County(McKeighan, J.), rendered September 12, 2014, convicting defendant upon his plea of guilty ofthe crime of criminal possession of a controlled substance in the third degree, and (2) bypermission, from an order of said court, entered February 17, 2017, which denied defendant'smotion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
In August 2014, and in full satisfaction of a three-count indictment, defendant pleaded guiltyto a single count of criminal possession of a controlled substance in the third degree with theunderstanding that he would be sentenced as a second felony offender to a prison term of sevenyears followed by two years of postrelease supervision. County Court thereafter sentenceddefendant in accordance with the terms of the plea agreement. In November 2015, defendantmoved pursuant to CPL 440.10 to vacate the judgment of conviction contending, among otherthings, that he was denied the effective assistance of counsel. The People opposed the requestedrelief, and County Court—in a lengthy decision—denied defendant's motionwithout a hearing. Defendant now appeals from the judgment of conviction and, by permission,from the order denying his motion to vacate.
Although the People concede—and we agree—that defendant's waiver of theright to appeal was invalid, defendant's challenge to the voluntariness of his plea is unpreservedfor our review in the context of his direct appeal absent record evidence of an appropriatepostallocution motion (see People vMuller, 159 AD3d 1232, 1232 [2018]; People v Darrell, 145 AD3d 1316, 1317 [2016], lv denied29 NY3d 1125 [2017]), as is his claim that his plea was coerced due to County Court'spurportedly inaccurate statements regarding his felony offender status and the future impactthereof (see People v Sparbanie, 158AD3d 942, 944 [2018], lv denied — NY3d — [May 30, 2018]; People v Wheeler, 128 AD3d1177, 1178 [2015]; see also Peoplev Roche, 106 AD3d 1328, 1329 [2013]). Defendant's ineffective assistance of counselclaim—to the extent that it impacts upon the voluntariness of his plea—is similarlyunpreserved for review on direct appeal (see People v Gause, 159 AD3d 1277, 1278 [2018]; People v Robinson, 155 AD3d1252, 1253 [2017], lv denied 30 NY3d 1119 [2018]). Additionally, defendant didnot make any statements during his allocution that cast doubt upon his guilt or negated anelement of the charged crime (seePeople v Bailey, 158 AD3d 948, 948 [2018]; People v Williams, 155 AD3d 1253, 1254 [2017], lv denied— NY3d — [May 14, 2018]), and nothing on the face of the colloquy calls intoquestion either the voluntariness of defendant's plea or his capacity to enter into it (cf. People v Park, 159 AD3d 1132,1133 [2018], lv denied — NY3d — [May 30, 2018]; People v Shaw, 157 AD3d 1138,1139-1140 [2018]). "As there was no basis for further inquiry by County Court, defendant'schallenge to the voluntariness of his plea does not fall within the narrow exception to thepreservation requirement" (People vWhite, 157 AD3d 1128, 1130 [2018] [citations omitted], lv denied 31 NY3d1018 [2018]). Were we to consider these arguments on defendant's direct appeal, we would findthem to be lacking in merit.
County Court expressly asked defendant whether he had consumed any drugs or alcoholwithin the 24 hours preceding his plea allocution, whether he had been treated for any mentalillness or psychological disorder within the past five years and whether there was any physical ormental health condition that impeded his ability to understand what was transpiring in court thatday; defendant responded "No" to each of those questions. As the transcript of the plea colloquyfails to call defendant's capacity into question, we would not find County Court's inquiries in thisregard to be inadequate (see People vSchreiner, 140 AD3d 1399, 1399-1400 [2016]). Similarly, given that counsel negotiatedan advantageous plea agreement for defendant—and in light of defendant's assurances thathe had been afforded sufficient time to confer with counsel and was "very much" satisfied withcounsel's services—we would find that defendant was afforded meaningful representation(see People v White, 153 AD3d1041, 1042 [2017]). Finally, while County Court arguably could have explained defendant'sfelony offender status and the impact thereof with greater clarity, even "inaccurate informationconcerning sentence exposure [or felony offender status] is not dispositive of whether a plea wasknowingly and voluntarily entered" (People v Smith, 49 AD3d 1032, 1033 [2008], lv denied 10NY3d 939 [2008]; see People vJohnson, 24 AD3d 1259, 1259-1260 [2005], lv denied 6 NY3d 814 [2006]).Given defendant's extensive criminal history and corresponding experience with the criminaljustice system, and in view of the fact that he was well aware that he would be sentenced as asecond felony offender, we would find defendant's challenge to the voluntariness of his plea and,more specifically, his coercion claim to be unpersuasive (see People v Ortiz, 69 AD3d 966, 967-968 [2010]).
Turning to defendant's motion to vacate the judgment of conviction, the bulk of thearguments advanced by defendant were or could have been raised on his direct appeal and, as"sufficient facts appear on the record with respect [there]to," such claims are not properly thesubject of a CPL article 440 motion (CPL 440.10 [2] [b]; see People v Dickson-Eason, 143 AD3d 1013, 1015 [2016], lvdenied 28 NY3d 1123 [2016]). As to the surviving claims—actual innocence andineffective assistance of counsel based upon off-the-record conversations withcounsel—we cannot say that County Court abused its discretion in denying defendant'smotion without a hearing.
To the extent that defendant's motion to vacate is predicated upon his claim of actualinnocence, "we note that vacatur of a judgment of conviction on this ground is expresslyconditioned upon the existence of a verdict of guilt after trial and defendant's plea ofguilty therefore foreclose[s] relief upon this ground" (People v DePerno, 148 AD3d 1463, 1464 [2017] [internalquotation marks and citations omitted], lv denied 29 NY3d 1030 [2017]; see CPL440.10 [1] [g]; People v Tiger, — NY3d &mdash, &mdash, 2018 NY Slip Op04377, *4-5 [2018]). Regarding defendant's ineffective assistance of counsel claim and thecorresponding impact that counsel's alleged off-the-record advice had upon the voluntariness ofdefendant's plea, according to defendant, he previously had been diagnosed with bipolar disorderand posttraumatic stress disorder—disorders from which he had suffered "all of [his] adultyears" and for which he had been prescribed various medications. On the morning of his pleacolloquy, defendant averred, his medication regimen was changed, and the resulting combinationof prescribed drugs caused him "to be very drowsy," "unable to concentrate" and "impaired [his]ability to understand the proceedings." Defendant further averred that he conveyed thisinformation to defense counsel, who—in turn—advised him "not to tell the court of[his] history of mental health problems and treatment."
The medical records accompanying defendant's affidavit indeed document a medicationchange, and defendant also included information regarding the potential side effects of hisprescribed medications. However, defendant's claims of mental confusion are belied by thetranscript of the plea colloquy (seePeople v Ryder, 136 AD3d 1109, 1110 [2016], lv denied 27 NY3d 1005 [2016]),the record does not otherwise establish that defendant was suffering from any side effects of hismedications at the time that he pleaded guilty and he has offered nothing other than hisself-serving affidavit to substantiate his claim that defense counsel effectively advised him toperjure himself during his allocution (see e.g. People v Lewis, 138 AD3d 1346, 1348-1349 [2016], lvdenied 28 NY3d 1073 [2016]). Under these circumstances, we cannot say that County Courtabused its discretion in denying defendant's motion to vacate without a hearing. Defendant'sremaining arguments, including his claim that the agreed-upon sentence imposed was harsh andexcessive, have been examined and found to be lacking in merit.
Garry, P.J., Egan Jr., Mulvey and Rumsey, JJ., concur. Ordered that the judgment and orderare affirmed.