| People v Miller |
| 2019 NY Slip Op 03699 [172 AD3d 1530] |
| May 9, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Santonieo Miller, Appellant. |
Keeley A. Maloney, Albany, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Mulvey, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered May 31, 2016, convicting defendant upon his plea of guilty of the crime of burglary inthe second degree.
After defendant and two other individuals entered an apartment and stole property, policeofficers stopped the vehicle in which the three were traveling and arrested them. An indictmentcharged all three with burglary in the second degree. After an unsuccessful suppression hearing,and as jury selection was underway, defendant pleaded guilty to the sole count and waived hisright to appeal in exchange for a prison term of five years, followed by five years of postreleasesupervision. Approximately two months later, defendant committed new offenses and wascharged in a four-count indictment. On the date scheduled for sentencing on the original burglarycharge, defendant sought assignment of new counsel to withdraw his plea. County Courtassigned new counsel but denied his subsequent motion to withdraw the plea. Having determinedthat defendant violated the plea agreement, the court imposed a prison sentence of eight years,followed by five years of postrelease supervision. Defendant appeals.
County Court did not abuse its discretion in denying defendant's motion to withdraw his plea.The decision "to permit a defendant to withdraw his or her plea of guilty is left to the sounddiscretion of County Court, and withdrawal will generally not be permitted absent some evidenceof innocence, fraud or mistake in its inducement" (People v Massia, 131 AD3d 1280, 1281 [2015] [internal quotationmarks, brackets and citation omitted], lv denied 26 NY3d 1041 [2015]; see People v Burns, 133 AD3d1045, 1046 [2015], lv denied 27 NY3d 1149 [2016]). "Trial judges are vested withdiscretion in deciding plea withdrawal motions because they are best able to determine whether aplea is entered voluntarily, knowingly and intelligently" (People v Fitzgerald, 56 AD3d 811, 812 [2008] [internal quotationmarks and citation omitted]). As long as the court permits the defendant a reasonable opportunityto present his or her contentions, a hearing is not required on the motion unless the recordpresents a genuine issue of fact with respect to the voluntariness of the plea (see People v Khan, 139 AD3d1261, 1262 [2016], lv denied 28 NY3d 932 [2016]; People v Pittman, 104 AD3d 1027,1028 [2013], lv denied 21 NY3d 1008 [2013]).
Defendant's motion was premised upon an ineffective assistance of counsel claim,specifically that counsel provided erroneous information about a testifying witness. In hisaffidavit on the motion, defendant averred that he was informed by counsel on the day of the pleathat the sole eyewitness to the crime was present in court and ready to testify against him.Defendant further averred that he had since learned that the witness was not in the courthouse oren route and she did not intend to appear or offer any testimony against him. He asserted that, butfor the false information conveyed by his counsel, defendant did not believe that the People hadsufficient evidence and he would not have pleaded guilty. When seeking assignment of newcounsel, defendant had stated on the record that the witness would sign an affidavit swearing thatshe was not going to testify because she was not sure that defendant had committed a crime; noaffidavit from the witness was submitted with the motion.
The assigned Assistant District Attorney (hereinafter ADA) stated that the witness originallywas uncooperative and hesitant to testify due to pressure in the neighborhood, leading to theissuance of a material witness order and warrant, but the witness then called the ADA andinformed him that she would come to testify the next day; this information was all relayed todefendant's counsel. The ADA affirmed that the police were ordered to pick up the witness andproduce her in court on the day of trial—the day that defendant ultimately pleaded guilty.The ADA stated in court that the witness had been en route to the courthouse that day when hecalled her and told her not to come because defendant and the other individuals were takingpleas. Considering that the People presented sworn proof from an individual with first-handknowledge, and defendant, who bore the burden on the motion, submitted only hearsay withoutidentifying the source or basis of his information, County Court did not abuse its discretion indeclining to hold a hearing (see People vBranton, 35 AD3d 1035, 1037 [2006], lv denied 8 NY3d 982 [2007];compare People v Wheaton, 45 NY2d 769, 770-771 [1978]; People v Henderson, 137 AD3d1670, 1671 [2016]). The proof demonstrated that counsel did not provide defendant withfalse or misleading information. Hence, as defendant's plea was not procured through ineffectiveassistance of counsel or a mistake in the inducement, the court did not err in denying the motionto withdraw the plea.
Defendant challenges his waiver of appeal as involuntary because his plea was allegedly notknowing, voluntary or intelligent. Having rejected his argument attacking the plea and havingindependently reviewed County Court's handling of the waiver, we conclude that defendantvalidly waived his right to appeal (seePeople v Moore, 167 AD3d 1158, 1159 [2018], lv denied 33 NY3d 951 [2019]). The valid appeal waiver precludes defendant's arguments regardingsuppression (see People v Sanders,25 NY3d 337, 342 [2015]; People vTetreault, 152 AD3d 1081, 1082 [2017], lv denied 30 NY3d 984 [2017]). Giventhat the court advised defendant of the maximum possible sentence that could be imposed if heviolated the plea agreement, his argument that the sentence was excessive is precluded by theappeal waiver (see People v Brown,163 AD3d 1269, 1271 [2018]). To that extent that defendant's ineffective assistance ofcounsel argument is not addressed above or precluded by his waiver of appeal, defendant was notdeprived of meaningful representation based on counsel's failure to file an optional posthearingmemorandum concerning suppression after he properly moved for suppression and activelyparticipated in the suppression hearing (see People v Abraham, 165 AD3d 1318, 1319 [2018]).
Finally, we note that, although County Court sentenced defendant to eight years in prison,followed by five years of postrelease supervision, the uniform sentence and commitment formand the certificate of conviction incorrectly indicate that the prison portion of his sentence is fiveyears. Although the judgment need not be disturbed, we remit for County Court to correct theerror on both forms (see People v Minaya, 54 NY2d 360, 364-365 [1981], certdenied 455 US 1024 [1982]; Peoplev Jaggarnine, 163 AD3d 1352, 1353 [2018]; People v Payne, 148 AD3d 1226, 1227-1228 [2017], lvdenied 29 NY3d 1084 [2017]).
Garry, P.J., Aarons, Rumsey and Pritzker, JJ., concur. Ordered that the judgment is affirmed,and matter remitted for entry of an amended uniform sentence and commitment form and anamended certificate of conviction.