| People v Griffin |
| 2019 NY Slip Op 05148 [173 AD3d 1203] |
| June 26, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Timothy Griffin, Appellant. |
Clement S. Patti, Jr., White Plains, NY, for appellant, and appellant pro se.
Letitia James, Attorney General, New York, NY (Lisa Ellen Fleischmann and Dennis A.Rambaud of counsel), for respondent.
Appeals by the defendant from two judgments of the Supreme Court, Westchester County(Barry E. Warhit, J.), both rendered September 8, 2015, convicting him of grand larceny in thesecond degree (four counts) and grand larceny in the third degree (three counts) under superiorcourt information No. 14-01294, and grand larceny in the second degree and grand larceny in thethird degree (two counts) under superior court information No. 15-00501, upon his pleas ofguilty, and imposing sentences.
Ordered that the judgments are affirmed.
The defendant's contention that his pleas of guilty were not knowingly, voluntarily, andintelligently entered is unpreserved for appellate review, since he did not move to withdraw hispleas prior to the imposition of sentences (see People v Lopez, 71 NY2d 662, 665 [1988];People v Pleitez-Raymundo, 160AD3d 902 [2018]; People vSpencer, 149 AD3d 983 [2017]). Further, the narrow exception to the preservationrequirement does not apply here, because the defendant's plea allocutions did not cast significantdoubt upon his guilt, negate an essential element of the crimes, or call into question thevoluntariness of the pleas (see People v Lopez, 71 NY2d at 666; People v Coleman, 164 AD3d 518[2018]). In any event, the record of the plea proceedings demonstrates that the defendant's pleasof guilty were knowingly, voluntarily, and intelligently entered (see People v Coleman,164 AD3d at 519).
The defendant's contention that he was deprived of the effective assistance of counsel isbased, in part, on matter appearing on the record and, in part, on matter outside the record, and,thus, constitutes a "mixed claim of ineffective assistance" (People v Maxwell, 89 AD3d 1108, 1109 [2011]; see People v Evans, 16 NY3d571, 575 n 2 [2011]). Since the defendant's claim of ineffective assistance of counsel cannotbe resolved without reference to matter outside the record, a CPL 440.10 proceeding is theappropriate forum for reviewing the claim in its entirety, and we decline to review the claim onthis direct appeal (see People vFreeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at 1109). Tothe extent that the defendant contends that the Supreme Court erred in denying, without ahearing, that branch of his CPL 440.10 motion which was premised upon the alleged ineffectiveassistance of counsel, that contention is not properly before this Court on direct appeal from thejudgments (see People v Banner,122 AD3d 641, 641 [2014]).
The defendant's contention that the Attorney General lacked authority to prosecute theseactions pursuant to Executive Law § 63 (3) was not forfeited by his pleas of guiltynor is it precluded by his valid waiver of his right to appeal (see People v Codina, 297AD2d 539, 539 [2002]). Nevertheless, the defendant's failure to raise this issue in the SupremeCourt precludes review of his contention on direct appeal. "The preservation requirement servesthe . . . purpose of alerting the adverse party of the need to develop a record forappeal" (People v Hunter, 17 NY3d725, 728 [2011]). Although a jurisdictional defect need not be preserved, "[t]his does not. . . dispense with the need for a factual record sufficient to permit appellate review"(People v Kinchen, 60 NY2d 772, 773-774 [1983]). "[T]he lack of an adequate recordbars review on direct appeal not only where vital evidence is plainly absent . . . butwherever the record falls short of establishing conclusively the merit of the defendant's claim"(People v McLean, 15 NY3d117, 121 [2010]). Since the defendant here failed to raise any challenge in the SupremeCourt to the Attorney General's authority to prosecute these actions, the Attorney General wasnot alerted to the need to establish its authority, and no record on this issue was made (seePeople v Hunter, 17 NY3d at 728; People v Gilmour, 98 NY2d 126, 129 [2002]).Accordingly, the record is insufficient to permit review of this contention on direct appeal(see People v McLean, 15 NY3d at 121; People v Kinchen, 60 NY2d at 773-774;People v Cubero, 160 AD3d1298, 1299 [2018]).
The defendant's contention that the superior court informations both contained duplicitouscounts was forfeited by his pleas of guilty (see People v Call, 162 AD3d 1063, 1064 [2018]; People v Jackson, 129 AD3d 1342,1342-1343 [2015]; People v Vega, 268 AD2d 686 [2000]; People v Branch, 73AD2d 230, 235 [1980]).
The defendant's challenges to the factual specificity of the counts charged in each superiorcourt information, including the lack of a more precise date or range of dates on which eachcrime is alleged to have occurred, are nonjurisdictional, and were forfeited by his pleas of guiltyand, in any event, are foreclosed by his valid waiver of his right to appeal (see People v Guerrero, 28 NY3d110, 116-117 [2016]; People v Morris, 61 NY2d 290, 293 [1984]; People v Brice, 146 AD3d 1152[2017]; People v Higgs, 146 AD3d981 [2017]).
The defendant's contention, raised in his pro se supplemental brief, that count four ofsuperior court information No. 14-01294 violates Criminal Procedure Law § 195.20and, therefore, is jurisdictionally defective is not forfeited by his plea of guilty to that superiorcourt information or precluded by his valid waiver of his right to appeal, and may be raised forthe first time on appeal (see People vPierce, 14 NY3d 564, 568 [2010]; People v Zanghi, 79 NY2d 815, 817 [1991];People v Eulo, 156 AD3d 720,721 [2017]; People v Edwards, 39AD3d 875, 876 [2007]). However, the contention is without merit.
A defendant held for the action of a grand jury may waive indictment and consent toprosecution by a superior court information (see NY Const, art I, § 6; CPL195.10 [1]; People v Milton, 21NY3d 133, 135 [2013]; People v D'Amico, 76 NY2d 877, 879 [1990]). In describingthe offenses to be charged in a superior court information, Criminal Procedure Law§ 195.20 provides that the offenses named in the written waiver of indictment andcharged in the subsequent superior court information "may include any offense for which thedefendant was held for action of a grand jury and any offense or offenses properlyjoinable therewith pursuant to section 200.20 and 200.40" (emphasis added) (see People v Walker, 148 AD3d1570 [2017]). "The waiver procedure is triggered by the defendant being held for Grand Juryaction on charges contained in a felony complaint . . . and it is in reference to thosecharges that its availability must be measured" (People v D'Amico, 76 NY2d at 879;see People v Pierce, 14 NY3d at 571). Thus, where the waiver of indictment and thesuperior court information include at least one offense for which the defendant was charged inthe felony complaint, Criminal Procedure Law § 195.20 permits a waiver ofindictment and a superior court information to also include "any offense" that is "properlyjoinable" pursuant to Criminal Procedure Law §§ 200.20 and 200.40 (see People v Pierce, 14 NY3d 564[2010]; People v Zanghi, 79 NY2d at 818; People v Seals, 135 AD3d 985 [2016]).
Here, it is undisputed that six of the seven counts contained in the waiver of indictment andsuperior court information No. 14-01294 are the same offenses as were charged in the relatedfelony complaint. Thus, pursuant to Criminal Procedure Law § 195.20, the AttorneyGeneral was permitted to include in the waiver and the superior court information any offensejoinable with those counts pursuant to Criminal Procedure Law § 200.20 (seePeople v Pierce, 14 NY3d at 572).
Pursuant to Criminal Procedure Law § 200.20 (2) (c), offenses are joinablewhen, even though based upon different criminal actions and not joinable pursuant to CriminalProcedure Law § 200.20 (2) (b), "such offenses are defined by the same or similarstatutory provisions and consequently are the same or similar in law." Counts one, two, and threeof superior court information No. 14-01294 each charge the defendant with grand larceny in thesecond degree in violation of Penal Law § 155.40 (1), and also were charged in thefelony complaint. Count four of superior court information No. 14-01294, which was not chargedin the felony complaint, also charged the defendant with grand larceny in the second degree inviolation of Penal Law § 155.40 (1). Since count four charges an offense "definedby the same or similar statutory provisions and consequently [is] the same or similar in law" asother offenses charged in the superior court information, which were also alleged in the felonycomplaint, it was properly joinable therewith pursuant to Criminal Procedure Law§ 200.20 (2) (c). Accordingly, superior court information No. 14-01294 was notdefective (see CPL 195.20; People v Pierce, 14 NY3d at 572).
The defendant's remaining contentions, including those raised in his pro se supplementalbrief, either have been forfeited by his pleas of guilty or are without merit. Mastro, J.P., Dillon,Maltese and Brathwaite Nelson, JJ., concur.