| People v Rudolph |
| 2019 NY Slip Op 01675 [170 AD3d 1258] |
| March 7, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Whirlee Rudolph, Appellant. |
Stephen W. Herrick, Public Defender, Albany (Jessica M. Gorman of counsel), for appellant,and appellant pro se.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Pritzker, J. Appeals (1) from a judgment of the County Court of Albany County (Lynch, J.),rendered February 18, 2016, convicting defendant upon his pleas of guilty of the crimes ofcriminal possession of a controlled substance in the third degree and criminal possession of acontrolled substance in the fourth degree, and (2) by permission, from an order of said court,entered April 7, 2017, which denied defendant's motion pursuant to CPL 440.10 and 440.20 tovacate the judgment of conviction and set aside the sentence, after a hearing.
In March 2014, defendant was charged by a five-count indictment with, among other things,criminal possession of a controlled substance in the first degree and criminal possession of acontrolled substance in the third degree stemming from a traffic stop that occurred in July 2015when defendant was pulled over in the City of Albany for having tinted windows. County Court,after a hearing, denied defendant's motion to suppress, among other things, "tangible seizedproperty" and defendant subsequently entered a guilty plea to criminal possession of a controlledsubstance in the third degree in full satisfaction of the indictment. As a condition of the pleaagreement, defendant agreed to waive his right to appeal, both orally and in writing. Defendantwas released on bail pending sentencing, but, prior to sentencing, the People moved to vacatedefendant's release status due to a new arrest. Subsequently, the parties agreed to a global pleadeal wherein defendant would enter a guilty plea on the new charge—criminal possessionof a controlled substance in the fourth degree—in exchange for a sentence of two years inprison, plus three years of postrelease supervision, to be served concurrently with an enhancedsentence of 12 years as a result of his previous guilty plea. As a condition of his global plea deal,defendant waived his right to appeal, orally and in writing, from the conviction and sentence,including the enhanced sentence on the prior conviction. Defendant was sentencedaccordingly.
Defendant later moved pro se pursuant to CPL 440.10 and 440.20 to vacate the judgment ofconviction and to set aside his sentence based upon ineffective assistance of counsel. CountyCourt subsequently appointed counsel for defendant and a hearing was held, during whichdefendant's trial counsel, Cheryl Coleman, testified. After the hearing, the court denieddefendant's motion. Defendant now appeals from both the judgment of conviction and, bypermission, the denial of his CPL article 440 motion.
We turn first to defendant's contentions regarding County Court's denial of his suppressionmotion. Initially, we note that, despite defendant executing a valid waiver of appeal in connectionwith his plea to criminal possession of a controlled substance in the third degree (see People v McDuffie, 89 AD3d1154, 1156 [2011], lv denied 19 NY3d 964 [2012]), we are reaching the merits ofdefendant's argument due to an ambiguous statement made by the court during the pleaproceeding regarding his right to appeal from the adverse suppression hearing ruling. As to themerits, the traffic stop was made after Jeffrey Devine, a State Trooper, observed excessivelytinted windows on defendant's vehicle and, as such, was justified (see Vehicle and TrafficLaw § 375 [12-a] [b] [2]; People v Banks, 148 AD3d 1359, 1360 [2017]). A "limited seizureof [a] vehicle's occupant must be reasonably related in scope, including its length, to thecircumstances which justified the detention in the first instance, unless circumstances arise whichfurnish the police with a founded suspicion that criminal activity is afoot" (People v Kelly, 37 AD3d 866, 867[2007] [internal quotation marks and citation omitted], lv denied 8 NY3d 986 [2007];see People v Banks, 148 AD3d at 1360). "[G]reat weight is accorded the trial court'sdetermination at a suppression hearing and, absent a basis in the record for finding that the court'sresolution of credibility issues was clearly erroneous, its determinations are generally notdisturbed" (People v Williams, 25AD3d 927, 928 [2006] [internal quotation marks and citations omitted], lv denied 6NY3d 840 [2006]; see People vMattis, 108 AD3d 872, 874 [2013], lv denied 22 NY3d 957 [2013]).
Devine testified at the suppression hearing that, after approaching the passenger side ofdefendant's vehicle, defendant rolled down the window and Devine asked him for his license andregistration. Upon receiving defendant's license, Devine noticed that defendant had a Brooklynaddress, so he asked defendant where he was going. Defendant responded that he was visitingsomeone in Albany, but could not tell the officer who the person was or where the person lived.After Devine ran defendant's license, he found that there was an active out-of-state warrant andthat defendant was on federal probation. Devine returned to defendant's car and asked him to stepout of the vehicle so Devine could interview him further about the warrant and probation. Devineexplained that he asked defendant to step out of the car because that was where Devine felt mostcomfortable and that he was concerned that if defendant was still sitting in the driver side of thecar, he could flee the scene, which has happened on numerous occasions. Defendant got out ofthe car and, in response to questioning by Devine, indicated that the warrant was still outstandingand that he was allowed to be outside of Brooklyn despite his federal probation status. Devinethen used his personal cell phone to call defendant's probation officer, who informed Devine thatdefendant did not have permission to leave the Brooklyn area and requested to speak todefendant.
Devine testified that while defendant was on the phone, he indicated to defendant that he wasgoing to check the tint of the window using his tint meter; defendant agreed to his request bynodding his head. While checking the tint, Devine had to roll down the window and open thedoor and, when he did, he smelled "an odor of mari[h]uana emanating from the inside of thevehicle." After defendant said that the odor was from hemp used for clothing, Devine conducteda search of defendant's vehicle, starting with the interior, and, when he found nothing there, heproceeded to the trunk where he located a black duffel bag that contained approximately fourpounds of marihuana. Devine also located bags containing a white powdery substance that hebelieved to be cocaine and an "off-white substance with a yellowish tint that tested positive formethamphetamines" inside of a Nike shoe box.
Based on the foregoing, County Court did not err in denying defendant's motion to suppress.Even though Devine did not smell marihuana when he approached the passenger side of thevehicle the first two times, the fact that he did smell marihuana when he approached the driverside, after rolling down the window and opening the door, was enough to establish probablecause to search the vehicle (see People vHorge, 80 AD3d 1074, 1074-1075 [2011]; People v Gaines, 57 AD3d 1120, 1121 [2008]). Additionally,despite defendant's contention that County Court should not have considered Devine's testimony"frank, candid and trustworthy" with "the general force and flavor of credibility," this Court givesgreat weight to the suppression court's credibility findings, and here there is no basis to concludethat the credibility finding was erroneous (see People v Mattis, 108 AD3d at 874;People v Williams, 25 AD3d at 927). Nor are we persuaded by defendant's assertion thathis detention was unlawfully prolonged. Evidence at the hearing established that Devine pulleddefendant over at approximately 2:40 p.m. and a tow truck was called for defendant's car at 3:17p.m., making the stop 37 minutes long. Devine acted within his discretion to run defendant'slicense, and when he found out about defendant's out-of-state warrant and federal probation, itwas reasonable for him to question defendant and attempt to contact defendant's probationofficer. Also, Devine's request to check the tint of the window was related to the stop, which ledDevine to smell the marihuana. Thus, this detention was "reasonably related in scope, includingits length, to the circumstances which justified the detention in the first instance" (People vBanks, 148 AD3d at 1360 [internal quotation marks and citations omitted]).
We turn next to defendant's assertion that his enhanced sentence of 12 years is harsh andexcessive. Initially, at the time that defendant entered his guilty plea to criminal possession of acontrolled substance in the third degree, County Court informed defendant that, if he were tocommit a new crime while out on bail pending sentencing, his plea would remain in effect and itwould not be bound by the sentencing agreement and instead could impose a sentence up to 12years plus three years of postrelease supervision. Given that the court adequately adviseddefendant of the consequences of violating the plea conditions, defendant's challenge to theenhanced sentence is precluded by his valid appeal waiver (see People v Bateman, 151 AD3d 1482, 1484 [2017], lvdenied 31 NY3d 981 [2018]; Peoplev Gilbert, 145 AD3d 1196, 1197 [2016], lv denied 28 NY3d 1184 [2017]).Moreover, at the time that defendant entered into the global plea agreement after being arrestedwhile on bail, he executed a second waiver of appeal that the court specifically advised defendantapplied "to both the conviction and the sentence [on the new charge], including the enhancedsentence on the prior conviction." Defendant has not advanced any arguments that this appealwaiver was anything other than knowing, intelligent and voluntary. This second appeal waiverlikewise precludes any challenge to the concurrent two-year sentence imposed on defendant'sconviction of criminal sale of a controlled substance in the fourth degree (see People v Moore, 167 AD3d1158, 1159 [2018]; People vHorton, 167 AD3d 1166, 1167 [2018]).
We now turn to defendant's arguments regarding County Court's denial of his CPL article440 motion after a hearing. Defendant's motion to vacate the judgment asserted three differentgrounds for ineffective assistance of Coleman, defendant's trial counsel—the failure to callcertain witnesses at the suppression hearing, the failure to communicate plea offers and a conflictof interest involving another lawyer in Coleman's law firm. In general, "an ineffective assistanceclaim does not lie so long as the evidence, the law, and the circumstances of a particular case,viewed in totality and as of the time of the representation, reveal that the attorney providedmeaningful representation" (People vRoshia, 133 AD3d 1029, 1031 [2015] [internal quotation marks, brackets and citationomitted], affd 28 NY3d 989 [2016]; see People v Cassala, 130 AD3d 1252, 1253 [2015], lvdenied 27 NY3d 994 [2016]). In the context of a plea, a "defendant has been affordedmeaningful representation when he or she receives an advantageous plea and nothing in therecord casts doubt on the apparent effectiveness of counsel" (People v Jackson, 128 AD3d 1279, 1280 [2015] [internal quotationmarks and citation omitted], lv denied 26 NY3d 930 [2015]; see People v Wares, 124 AD3d1079, 1080 [2015], lv denied 25 NY3d 993 [2015]).
First, we find no merit to defendant's argument that Coleman was ineffective for failing tocall certain witnesses at the suppression hearing as defendant has not demonstrated that this wasnot a strategic decision (see People vThorpe, 141 AD3d 927, 934-935 [2016], lv denied 28 NY3d 1031 [2016]; People v Gokey, 134 AD3d 1246,1247-1248 [2015], lv denied 27 NY3d 1069 [2016]). Coleman testified that her primarystrategy was to attack the credibility of Devine, which is evident from the record of the hearing.She also testified that she recalled discussing with defendant the possibility of calling anothertrooper who was present at the scene, but that, based on her years of experience as a defenseattorney, she did not think that it was advisable. Coleman also explained why, in her experience,she did not see any advantage to having defendant testify at the suppression hearing. Therefore, itis evident from the record that Coleman's strategy, while ultimately not successful, does notamount to ineffective assistance of counsel (see People v Tomasky, 36 AD3d 1025, 1027 [2007], lvdenied 8 NY3d 927 [2007]; People v Curry, 294 AD2d 608, 611 [2002], lvdenied 98 NY2d 674 [2002]).
Next, we find no merit to defendant's claim that Coleman's alleged failure to communicateplea offers constituted ineffective assistance of counsel. "In order to prevail on an ineffectiveassistance of counsel claim based upon the defense counsel's failure to adequately inform thedefendant of a plea offer, the defendant has the burden of establishing that the People made theplea offer, that the defendant was not adequately informed of the offer, that there was areasonable probability that the defendant would have accepted the offer had counsel adequatelycommunicated it to him or her, and that there was a reasonable likelihood that neither the Peoplenor the court would have blocked the alleged agreement" (People v Brett W., 144 AD3d 1314, 1316 [2016] [internalquotation marks, brackets and citations omitted]; see People v Fernandez, 5 NY3d 813, 814 [2005]). Inasmuch asdefendant failed to set forth any particular offer of which he was not advised, but rather vaguelyreferenced what he believed to be several uncommunicated offers, defendant's testimony andmotion papers fail to establish any of the necessary elements to prevail on this claim.
Finally, we disagree with defendant that Coleman's representation was ineffective based upona conflict of interest. "A conflict-based ineffective assistance of counsel claim involves twoinquiries. First, the court must assess whether there was a potential conflict of interest in adefendant's representation. Second, a defendant must show that the conduct of his [or her]defense was in fact affected by the operation of the conflict of interest, or that the conflictoperated on the representation" (People v Abar, 99 NY2d 406, 409 [2003] [internalquotation marks and citation omitted]; see People v Wright, 129 AD3d 1217, 1219 [2015], affd 27NY3d 516 [2016]). The conflict of interest here stems from Coleman hiring Kurt Haas, a lawyerwho worked for the Albany County District Attorney (hereinafter the DA) as an AssistantDistrict Attorney (hereinafter ADA) prior to working for Coleman. In his capacity as ADA, Haaswas assigned to handle the case surrounding defendant's first arrest. The testimony revealed thatnot much occurred on the case while Haas was still with the DA's office, as his and Coleman'sdiscussions regarding resolution never came to fruition, and when Haas left to work for Coleman,the file was reassigned and indicted by the newly assigned ADA shortly thereafter. Both Haasand Coleman testified that to avoid a potential conflict of interest, among other things, Haaswould play no role in any of Coleman's cases that Haas handled when he was at the DA's office.However, Haas met with defendant after he was arrested while out on bail pending sentencing onthe first case. Haas also represented defendant at his final sentencing, when the enhancedsentence was imposed, as well as the sentence on the new charge, all of which had already beenpleaded to. At sentencing, a brief issue arose with the predicate felony offender statement, butthat issue was resolved by defendant prior to Haas having the opportunity to interject. Afterresolution of the issue, the agreed-upon sentence was imposed.
"[T]here is an inherent conflict of interest where a defense attorney who initially representeda defendant and[,] during the pendency of the criminal proceeding[,] then joined the [DA's]office. However, the concerns that arise in that scenario are not present" in cases, such as here,where the reverse occurs and an ADA assumes a position as a defense attorney (Matter of State of New York v DavidJ., 167 AD3d 1251, 1255 [2018] [internal quotation marks and citation omitted]; seePeople v Abar, 99 NY2d at 410). Here, defendant has set forth no evidence of informationthat Haas obtained about defendant during his prior employment that compromised hisrepresentation of defendant and would create a conflict of interest. However, even if he had,defendant's argument still must fail as we do not find any evidence that this potential conflict ofinterest operated on the defense because Haas did not make any statements of substance atdefendant's sentencing, and the agreed-upon sentence was imposed without issue (see Peoplev Abar, 99 NY2d at 410). We find defendant's remaining contentions, to the extent notspecifically addressed herein, to be lacking in merit.
Egan Jr., J.P., Devine and Rumsey, JJ., concur. Ordered that the judgment and order areaffirmed.