| People v Pittman |
| 2018 NY Slip Op 07801 [166 AD3d 1243] |
| November 15, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Onte Pittman, Appellant. |
Aaron A. Louridas, Delmar, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Schenectady County (Sira,J.), rendered March 27, 2017, convicting defendant upon his plea of guilty of the crimeof rape in the third degree.
Defendant waived indictment and agreed to be prosecuted pursuant to a superiorcourt information charging him with the reduced charge of rape in the third degree.Consistent with the terms of the plea agreement, which required him to waive his right toappeal, defendant pleaded guilty to the charged crime with the understanding that hewould be sentenced to six months in jail and placed on probation for a period of 10years. After the matter was adjourned for sentencing, defendant moved to withdraw hisplea; the People opposed this request. County Court denied defendant's motion andthereafter imposed the agreed-upon sentence. Defendant now appeals.
Initially, we agree with defendant that his waiver of the right to appeal was invalid.County Court neither explained the separate and distinct nature of the waiver nor madeany effort to ascertain whether defendant understood its implications and consequences(see People v Thompson,157 AD3d 1141, 1141 [2018]; People v Farrell, 156 AD3d 1062, 1062 [2017], lvdenied 30 NY3d 1115 [2018]; People v Dumas, 155 AD3d 1256, 1256 [2017]). Similarly,although defendant signed a written waiver in open court, County Court "failed toascertain whether defendant had read the waiver, understood its contents and/or haddiscussed the ramifications thereof with counsel" (People v Mallard, 163 AD3d 1350, 1351 [2018]; see People v McClain, 161AD3d 1457, 1458 [2018]; People v Brewster, 161 AD3d 1309, 1310 [2018]). Giventhe invalid waiver, "defendant's challenge to the severity of the sentence is notprecluded" (People vSuddard, 164 AD3d 950, 951 [2018]) but, upon our review of the record, wefind no extraordinary circumstances or abuse of discretion warranting a reduction of theagreed-upon [*2]sentence in the interest of justice (see generally People vTreceno, 160 AD3d 1216, 1216 [2018]).
As for defendant's motion to withdraw his plea, although defendant now argues thathe was pressured by the attorney initially assigned to represent him to accept the People'soffer, was innocent of the charged crime and received the ineffective assistance ofcounsel,[FN*] thesole ground advanced in defendant's motion papers was the duress/coercion he felt inresponse to his arrest being reported on a "hate blog," his distrust of assigned counsel andhis belief that there was a conspiracy against him. Defendant's claim of coercion is beliedby his statements during the plea colloquy, wherein he assured County Court that he hadbeen afforded sufficient time to confer with his family and counsel and was pleadingguilty of his own free will (seePeople v Taylor, 135 AD3d 1237, 1237 [2016], lv denied 27 NY3d1075 [2016]; People vShurock, 83 AD3d 1342, 1344 [2011]), and his remainingarguments—actual innocence and the ineffective assistance of counsel—arenot preserved for our review as they were not advanced in his motion to withdraw hisplea (see People v Howe,164 AD3d 951, 952 [2018]; People v Griffin, 134 AD3d 1228, 1230 [2015], lvdenied 27 NY3d 1132 [2016]; People v Scales, 118 AD3d 1500, 1500-1501 [2014], lvdenied 23 NY3d 1067 [2014]; People v Delarosa, 104 AD3d 956, 956 [2013], lvdenied 21 NY3d 1003 [2013]; People v Wilson, 101 AD3d 1248, 1249 [2012]). Asdefendant did not make any statements during his allocution that cast doubt upon hisguilt or otherwise called into question the voluntariness of his plea, the narrow exceptionto the preservation requirement was not triggered (see People v Burks, 163 AD3d 1286, 1287 [2018]; People v Haenelt, 161 AD3d1489, 1490 [2018], lv denied 31 NY3d 1148 [2018]).
Were we to address these arguments, we would find them to be lacking in merit.Defendant's postplea (and entirely unsupported) protestations of innocence, as initiallyarticulated during his presentence investigation interview and reiterated at the time ofsentencing, are inconsistent with his sworn statements during the plea allocution andwould not warrant vacatur of his plea (see People v Hollenbeck, 152 AD3d 974, 976 [2017], lvdenied 30 NY3d 1061 [2017]; People v Chaires, 150 AD3d 1326, 1327 [2017], lvdenied 29 NY3d 1124 [2017]; People v Cadet, 144 AD3d 1335, 1336 [2016], lvdenied 28 NY3d 1143 [2017], cert denied 583 US &mdash, 138 S Ct 112[2017]; People v Crispell,136 AD3d 1121, 1122 [2016], lv denied 27 NY3d 1149 [2016]; People v Gibson, 95 AD3d1033, 1033-1034 [2012], lv denied 19 NY3d 996 [2012]). To the extent thatdefendant contends that assigned counsel failed to properly investigate his case in thefirst instance, this argument implicates matters outside of the record and is betteraddressed in a CPL article 440 motion (see People v Franklin, 146 AD3d 1082, 1084 [2017], lvdenied 29 NY3d 948 [2017]; People v Lewis, 143 AD3d 1183, 1185 [2016]). As for theConflict Defender's asserted failure to obtain additional supporting affidavits fordefendant's motion to withdraw his plea, counsel cannot be faulted for failing to pursueor, in this case, support a motion that had little chance of success (see e.g. People v Richardson,162 AD3d 1328, 1332 [2018]; People v Pratt, 162 AD3d 1202, 1203 [2018], lvdenied 32 NY3d 940 [2018]). Accordingly, we would find no basis upon which toconclude that defendant was denied meaningful representation. Defendant's remainingarguments have been examined and found to be lacking in merit.
Garry, P.J., Devine, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant's ineffectiveassistance of counsel claim is directed at both the attorney who was assigned to representhim at the time of his plea and the Conflict Defender who subsequently represented himon the motion to withdraw.