| People v McGee |
| 2018 NY Slip Op 08203 [166 AD3d 1390] |
| November 29, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Russell McGee, Appellant. |
Rebecca L. Fox, Plattsburgh, for appellant, and appellant pro se.
Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Clinton County (McGill,J.), rendered May 26, 2016, convicting defendant upon his plea of guilty of the crimes ofcriminal sale of a controlled substance in the third degree (four counts), criminalpossession of a controlled substance in the third degree and criminal possession of afirearm.
In satisfaction of two indictments, defendant pleaded guilty to four counts ofcriminal sale of a controlled substance in the third degree and one count each of criminalpossession of a controlled substance in the third degree and criminal possession of afirearm and waived his right to appeal. He was sentenced, as a second felony offenderwith a prior violent felony offense, in accordance with the plea agreement, to anaggregate prison term of 12 years followed by three years of postrelease supervision.Defendant appeals.
Initially, the People concede, and our review of the record confirms, that the waiverof the right to appeal is invalid, as County Court did not adequately advise defendant thatthe waiver of the right to appeal is separate and distinct from the rights automaticallyforfeited by the guilty plea (seePeople v Lopez, 6 NY3d 248, 256 [2006]; People v Campbell, 161 AD3d 1380, 1380 [2018], lvdenied 32 NY3d 935 [2018]). Nevertheless, given that the record does not reflectthat defendant made an appropriate postallocution motion, defendant's challenge to theknowing, voluntary and intelligent nature of the plea is unpreserved for our review (see People v Peque, 22 NY3d168, 182 [2013]; People vMuller, 159 AD3d 1232, 1232 [2018]). Further, we are unpersuaded bydefendant's contention that the narrow exception to the preservation requirement appliesbecause the record does not disclose that defendant made any statements during the pleacolloquy that cast doubt upon his guilt or otherwise called into question the voluntarinessof his plea (see People v Muller, 159 AD3d at 1232; People v Fay, 154 AD3d1178, 1181 [2017], lv denied 30 NY3d 1115 [2018]).
[*2] Defendant also asserts that he received ineffectiveassistance of counsel. Although the issue is not preserved for our review given theabsence of a postallocution motion, we find that the particular circumstances herewarrant the exercise of our interest of justice jurisdiction (see CPL 470.15 [3][c]). The record reveals that, on Monday, March 28, 2016, before defendant entered intothe underlying plea agreement, defense counsel brought to County Court's attention asituation that had occurred between him and the prosecutor on the preceding Friday.Although the details of the incident were not placed on the record, defense counselapologized for his inappropriate conduct and candidly stated that he "let some personalissues override [his] better judgment," that he "should never have said most of the thingsthat [he] said, if not all of the things," and that, "as a result of part of that problem, [he]misconstrued what [defendant] was willing to do relative to the plea offer that was on thetable at that time." Defense counsel further expressed the belief that, because of hisconduct, a more favorable plea offer that was allegedly available on the preceding Fridaywas no longer available. In our view, defense counsel fulfilled his professional obligationby immediately bringing his conduct to County Court's attention and seeking to remedyany resulting prejudice to defendant. Thus, on this incomplete record, we cannotconclude, as defendant urges, that defense counsel's vague references to his allegedlyprejudicial behavior on the preceding Friday constituted ineffective assistance ofcounsel.
However, we are nonetheless constrained to reverse the judgment of convictionbecause County Court failed to take appropriate action in response to defense counsel'sdisclosures. Initially, County Court failed to recognize that defense counsel's statementsdisqualified him from continuing to represent defendant, particularly if defense counselwere required to provide testimony regarding the events that allegedly took place on thepreceding Friday (see generally People v Paperno, 54 NY2d 294, 299-300[1981]; People v Rufus, 56AD3d 1175, 1175-1176 [2008], lv denied 11 NY3d 930 [2009]; People v Swanson, 43 AD3d1331, 1332 [2007], lv denied 9 NY3d 1010 [2007]). Accordingly, whenpresented with defense counsel's statements, County Court should have immediatelyexplained the situation to defendant and adjourned the matter to allow for the substitutionof counsel.
Following substitution of counsel, County Court should have conducted a hearing todetermine whether defendant received the ineffective assistance of counsel during theplea negotiation process and, thus, was entitled to an order directing the People to reofferthe more favorable plea offer that was allegedly available on the preceding Friday (see People v Maldonado, 116AD3d 980, 981 [2014]; see generally Lafler v Cooper, 566 US 156,163-164, 174 [2012]). County Court, however, failed to appreciate that, if defendantmade the requisite showing at that hearing, it could in its discretion direct the People toreoffer the prior, more favorable plea, if it was in fact made (see Lafler v Cooper,566 US at 174; People v Maldonado, 116 AD3d at 981). Indeed, a court maydirect the People to reoffer a prior, more favorable plea offer on ineffective assistance ofcounsel grounds only if a defendant demonstrates (1) the existence of a prior, morefavorable plea offer, (2) a reasonable probability that, but for defense counsel's conduct,he or she would have accepted the prior plea offer, (3) a reasonable probability that theagreement would have been presented to and accepted by the court and (4) that theconviction and/or sentence under the terms of the plea offer would have been less severethan the conviction and sentence ultimately imposed (see Lafler v Cooper, 566US at 163-164, 174; People vBrett W., 144 AD3d 1314, 1316 [2016]; People v Nicelli, 121 AD3d 1129, 1129-1130 [2014], lvdenied 24 NY3d 1220 [2015]; People v Maldonado, 116 AD3d at 981).County Court did not afford defendant the opportunity to make this showing here.Rather, it repeatedly misinformed defendant that it could not direct the People to reofferthe prior plea offer and that defendant could either take a new plea offer or go to trial. Itis under these circumstances that defendant accepted the later plea offer and entered theunderlying guilty plea. Therefore, we reverse the judgment of conviction and remit thematter for substitution of defense counsel and further proceedings.
Garry, P.J., Mulvey, Rumsey and Pritzker, JJ., concur. Ordered that the judgment isreversed, as a matter of discretion in the interest of justice, and matter remitted to theCounty Court of Clinton County for further proceedings not inconsistent with thisCourt's decision.