| People v Wentland |
| 2021 NY Slip Op 00578 [191 AD3d 704] |
| February 3, 2021 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Walter Wentland, Sr., Appellant. |
Sussman and Associates, Goshen, NY (Jonathan R. Goldman of counsel), for appellant.
David M. Hoovler, District Attorney, Goshen, NY (Edward D. Saslaw of counsel), forrespondent.
Appeal by the defendant from (1) an order of the County Court, Orange County (William L.DeProspo, J.), dated July 23, 2019, which denied his motion, in effect, pursuant to CPL 220.60(3) to withdraw his plea of guilty, and (2) a judgment of the same court rendered January 23,2020, convicting him of attempted assault in the second degree and obstructing governmentaladministration in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed, on the law, the defendant's motion, in effect, pursuantto CPL 220.60 (3) to withdraw his plea of guilty is granted, the plea of guilty is vacated, the orderis modified accordingly, and the matter is remitted to the County Court, Orange County, forfurther proceedings on the indictment.
The appeal from the order must be dismissed. No appeal lies from an order arising out of acriminal proceeding unless one is provided for by the Criminal Procedure Law (see Matter of People v Juarez, 31NY3d 1186, 1187 [2018]; People v Stevens, 91 NY2d 270, 277 [1998]; People v Delano F., 176 AD3d736, 737 [2019]). The denial of the defendant's motion, in effect, to withdraw his plea ofguilty is brought up for review on the appeal from the judgment (see CPL 450.10 [1];People v Delano F., 176 AD3d at 737; see also People v Snype, 171 AD3d 1220 [2019]).
On July 22, 2018, Nicholas Wentland (hereinafter Nicholas) allegedly was driving whileunder the influence of alcohol, and was stopped by police officers. When Nicholas' father, WalterWentland, Sr. (hereinafter the defendant), arrived at the scene, the defendant allegedly assaultedand injured one of the officers. According to the defendant, he had been informed that Nicholaswas involved in an automobile accident in which Nicholas "went through the windshield," andthe defendant "rushed into the accident scene yelling for [Nicholas]," where he was forciblystopped and injured by police officers on the scene. The defendant was charged with, inter alia,assault in the second degree and obstructing governmental administration in the second degree,and Nicholas was charged under the same indictment with obstructing governmentaladministration in [*2]the second degree and two counts ofoperating a motor vehicle while under the influence of alcohol.
At an arraignment on November 27, 2018, attorney Brandon Ozman advised the CountyCourt that he was representing both the defendant and Nicholas because they were "united ininterest." Thereafter, at a joint plea hearing on March 5, 2019, Ozman again appeared as counselfor both the defendant and Nicholas, noting that his clients "are a bit confused" as to the terms ofa plea offer. Ozman then indicated that the plea offer was for (1) Nicholas to plead guilty to onecount of operating a motor vehicle while under the influence of alcohol (a misdemeanor), with aconditional discharge and penalties including revocation of his driver license; and (2) thedefendant to plead guilty to attempted assault in the second degree (a class E felony) andobstructing governmental administration in the second degree (a class A misdemeanor), with aone-year term of probation, and that at the expiration of the one-year period, the defendant wouldbe permitted to withdraw his plea to the felony offense and receive a conditional discharge on themisdemeanor offense. Ozman then requested time to speak with his clients "to make sure theyboth understand" the terms of the plea.
In an affidavit submitted by the defendant, he stated that during a recess, Ozman allegedlyadvised the defendant that the People would allow Nicholas to plead guilty to one count ofdriving while under the influence of alcohol "in full satisfaction of all charges against [Nicholas]if [the defendant] accepted a plea to a count of attempted assault on a police officer." Thedefendant further averred that he "expressed . . . misgivings" to Ozman and that he"did not wish to take a plea," but Ozman assured him that "the People would withdraw theirpositive disposition of the charges against [Nicholas] if [the defendant] did not agree to thisplea," since "the plea was a package deal." The defendant also attested that although he neverassaulted a police officer and was himself the victim of an assault by several officers, hereluctantly accepted the plea offer "to benefit [his] son" after Ozman "emphasized the benefit to[Nicholas] of the plea."
Following the recess, the County Court asked the defendant if he had spoken to his attorneyabout pleading guilty and was satisfied with the services of his attorney, and the defendantanswered both questions in the affirmative. The court then advised the defendant, among otherthings, that by pleading guilty, he was giving up the right to a jury trial, and confirmed that thedefendant "had enough time to speak to [his] lawyer." The defendant then entered a plea ofguilty, answered in the affirmative when asked if he was pleading guilty because he was, in fact,guilty, and answered in the negative when asked if "anyone threatened or forced [him] to pleadguilty" or if "anyone other than the Court made [him] any promises in return for [the] plea ofguilty" other than those "heard on the record." The court found that the defendant's plea wasknowing, intelligent, and voluntary, and accepted the defendant's plea.
At the close of the plea proceeding, the County Court instructed the defendant that the termsof his plea included a requirement to cooperate with the probation department, including "beingtruthful with them about the facts and circumstances in the case." The court warned the defendantthat a violation of any terms of the plea "will result in me not having to be bound by my promisesto you today."
Thereafter, the defendant, represented by new counsel, moved, in effect, pursuant to CPL220.60 (3) to withdraw his plea of guilty, asserting in his supporting affidavit that he did notassault a police officer, but rather that he was assaulted by police officers during the incident, andthat he had informed his attorney he did not wish to enter a plea of guilty, but only did so underencouragement by Ozman to benefit his son. The defendant also asserted that Ozman coercedhim to take the plea by stating that if he did not take the plea, it was "very likely" Nicholas"would face 'jail time.' " In an order dated July 23, 2019, the County Court denied thedefendant's motion, in effect, to withdraw his plea.
At sentencing on January 23, 2020, the defendant acknowledged that he maintained hisinnocence when he was interviewed by the probation department, despite his promise at the pleaproceeding to "cooperate with the Probation Department," but stated that "I had to do it for myson" with reference to taking the plea. The County Court found that the defendant violated theterms of [*3]his plea by maintaining his innocence, and thereuponimposed an "enhanced sentence" of concurrent terms of six months' imprisonment on each of thedefendant's convictions. The defendant appeals.
"The decision to permit a defendant to withdraw a previously entered plea of guilty, as wellas the nature and extent of the fact-finding inquiry, rests largely within the sound discretion ofthe court and generally will not be disturbed absent an improvident exercise of discretion" (People v Jemmott, 125 AD3d1005, 1006 [2015]; see CPL 220.60 [3]). Generally, "such a motion must bepremised upon [such] evidence of possible innocence or of fraud, mistake, coercion orinvoluntariness in the taking of the plea" (People v De Jesus, 199 AD2d 529, 530[1993]). While "bare and unsubstantiated claims of coercion or duress, without more, areinsufficient to warrant vacatur of a guilty plea . . . , vacatur may be warranted wherethe record substantiates a defendant's claim that a guilty plea was motivated, at least in part, bysome unduly coercive circumstance" (People v Hollmond, 191 AD3d 120, 132-135 [2d Dept 2020][citations omitted]). In addition, vacatur of a plea is warranted where the defendant demonstrates"a significant possibility of a conflict of interest . . . bearing a substantialrelationship to the conduct of the defense" arising from joint representation of the defendant andanother individual (People v Recupero, 73 NY2d 877, 879 [1988]).
Here, the record as a whole demonstrates that the defendant's plea of guilty was motivated, atleast in part, by coercive circumstances. The defendant averred, inter alia, that Ozman urged himto plead guilty despite his protestations of innocence because it was "very likely" that Nicholaswould otherwise "face 'jail time.' " The record also reflects that the favorable terms ofNicholas' plea offer were conditioned upon the defendant entering a plea of guilty as part of thesame plea agreement (see generally People v Hollmond, 191 AD3d at 139). Moreover,the defendant demonstrated a significant possibility of a conflict of interest arising from Ozman'sjoint representation of the defendant and Nicholas. The defendant's maintenance of his innocencewas at odds with Ozman obtaining a favorable plea offer for Nicholas as part of the "packagedeal," which also required the defendant to enter a plea of guilty (see People v Oritz, 83AD2d 985 [1981]). Thus, the record suggests that the defendant's plea of guilty was induced byconsideration other than his desire to obtain more favorable sentencing for himself, and that thedefendant was deprived of representation that was "singlemindedly devoted to his best interestsas required by both the Constitution of the United States and the New York State Constitution"(People v Hill, 172 AD3d 1095,1096 [2019]; cf. People v Rowe, 277 AD2d 403 [2000]).
In light of our determination, we need not reach the defendant's remaining contentions.
Accordingly, the defendant's motion, in effect, pursuant to CPL 220.60 (3) to withdraw hisplea of guilty is granted, the plea of guilty is vacated, and the matter is remitted to the CountyCourt, Orange County, for further proceedings on the indictment. Dillon, J.P., LaSalle, Connollyand Wooten, JJ., concur.