| People v Rose |
| 2021 NY Slip Op 02318 [193 AD3d 885] |
| April 14, 2021 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Winston S. Rose, Appellant. |
Steven A. Feldman, Uniondale, NY (Arza Feldman of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, NY (Caren C. Manzello of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (RichardAmbro, J.), rendered December 9, 2016, convicting him of criminal sale of a controlledsubstance in the third degree and conspiracy in the second degree, upon his plea of guilty, andimposing sentence. By decision and order of this Court dated July 17, 2019, the matter wasremitted to the County Court, Suffolk County, for further proceedings on the defendant'sapplication to withdraw his plea of guilty, for which the defendant was to be appointed newcounsel, and thereafter for a report to this Court limited to the County Court's findings withrespect to whether the defendant established entitlement to withdrawal of his plea. The appealwas held in abeyance pending receipt of the County Court's report. The County Court has nowfiled its report.
Ordered that the judgment is affirmed.
The defendant pleaded guilty to criminal sale of a controlled substance in the third degreeand conspiracy in the second degree. At sentencing, the defendant made a pro se oral applicationto withdraw his plea of guilty. Defense counsel took a position adverse to the defendant and theCounty Court denied the defendant's application to withdraw his plea. The defendant appealedfrom the ensuing judgment of conviction. In a decision and order dated July 17, 2019, this Courtdetermined that the defendant's right to counsel was adversely affected when his attorney took aposition adverse to him with respect to his application. This Court remitted the matter to theCounty Court, Suffolk County, for further proceedings on the defendant's application to withdrawhis plea of guilty, for which the defendant was to be appointed new counsel, and thereafter areport to this Court limited to the County Court's findings with respect to whether the defendantestablished entitlement to withdrawal of his plea. The appeal was held in abeyance pendingreceipt of the County Court's report.
The County Court now reports that new counsel was appointed, and that a hearing was heldon December 17, 2019, at which time the defendant, through counsel, renewed his application towithdraw his plea, asserting that he was denied effective assistance of plea counsel and that hisplea was not voluntarily made in that it was connected to the plea of his co-defendant father. Thecourt found that the defendant failed to establish his entitlement to withdrawal of his plea.
The defendant's purported waiver of his right to appeal was invalid. The County Court's tersecolloquy did not adequately advise the defendant of the nature of the right to appeal and theconsequences of waiving that right (seePeople v Alston, 163 AD3d 843 [2018]; People v Etienne, 152 AD3d 790, 790 [2017]). Further, the courtmischaracterized the nature of the right to appeal by stating that, by waiving his right to appeal,once the defendant was sentenced the case was "closed for good" (see People v Thomas, 34 NY3d545 [2019]; People vUnderwood, 187 AD3d 1221 [2020]).
The County Court providently exercised its discretion in denying the defendant's applicationto withdraw his plea of guilty. Contrary to the defendant's contention, the fact that his plea offerwas connected to the disposition of his co-defendant father's case did not render his pleainherently coercive. "[S]o long as the plea agreement is voluntarily, knowingly and intelligentlymade, the fact that it is linked to the prosecutor's acceptance of a plea bargain favorable to a thirdperson does not, by itself, make defendant's plea illegal" (People v Fiumefreddo, 82NY2d 536, 544 [1993]). "[W]hile a connected plea entailing benefit to a third person can placepressure on a defendant, the inclusion of a third-party benefit in a plea bargain is simply onefactor for a [trial] court to weigh in making the overall determination whether the plea isvoluntarily entered" (id. at 545 [internal quotation marks omitted]). Here, the defendant'sclaim of coercion is belied by the record. The defendant, who had the assistance of an attorney,voluntarily admitted his guilt after a thorough and complete plea allocution. The defendantacknowledged that he had sufficient time to speak with his counsel and was satisfied with hisservices. The defendant confirmed that no one had forced, threatened, or coerced him intopleading guilty, and that he was pleading guilty voluntarily. The defendant sufficiently allocutedto the facts of the crimes. Moreover, the defendant was fully apprised of the consequences ofpleading guilty. Any alleged benefit to the defendant's father was minimal. Further, the recordreveals that, prior to accepting the plea offer, the court afforded the defendant time to discuss thematter with counsel and his mother. Accordingly, the defendant's plea of guilty was knowingly,voluntarily, and intelligently made.
The defendant further asserts that his plea counsel was ineffective in that he, inter alia, failedto investigate any pre-indictment delays and inconsistencies in the indictment. The defendant'sclaim of ineffective assistance of counsel cannot be reviewed on direct appeal because it is basedon matters outside the record on appeal (see People v Walters, 183 AD3d 765, 766 [2020]; People v Shabazz, 174 AD3d 824,825 [2019]). The appropriate vehicle for asserting a claim of ineffective assistance of counselgrounded in allegations referring to facts outside the record is a motion pursuant to CPL 440.10(see People v Walters, 183 AD3d at 766; People v Shabazz, 174 AD3d at825).
Contrary to the defendant's contention, the term "proceeds" in Penal Law§ 220.77 (2) does not render the statute unconstitutionally vague. Pursuant to PenalLaw § 220.77 (2), "[a] person is guilty of operating as a major trafficker when:. . . [a]s a profiteer, such person knowingly and unlawfully sells, on one or moreoccasions within six months or less, a narcotic drug, and the proceeds collected or due from suchsale or sales have a total aggregate value of seventy-five thousand dollars or more." The statutedefines the criminal offense of operating as a major trafficker "with sufficient definiteness thatordinary people can understand what conduct is prohibited and in a manner that does notencourage arbitrary and discriminatory enforcement" (Kolender v Lawson, 461 US 352,357 [1983]; see People v Smith, 44 NY2d 613, 618-619 [1978]). "[T]he use of ordinaryterms to express ideas which find adequate interpretation in common usage and understanding" isnot precluded (People v Bergerson, 17 NY2d 398, 403 [1966] [internal quotation marksomitted]; see People v Byron, 17 NY2d 64, 67 [1966]). While not specifically defined inarticle 220 of the Penal Law, the term "proceeds" is commonly used and easily understood byordinary people (see People v Bergerson, 17 NY2d at 403; People v Guzman, 36 Misc 3d261, 265 [Suffolk County Ct 2012]). Moreover, the statute precludes arbitrary anddiscriminatory enforcement in that a violation of the statute requires that a specific amount ofproceeds, $75,000, to have been collected or due to an individual, over a specified period of time,six months (see Grayned v City of Rockford, 408 US 104, 108-109 [1972]; People vGuzman, 36 Misc 3d at 265).
The defendant's remaining contention is not properly before this Court. Rivera, J.P., Dillon,Brathwaite Nelson and Christopher, JJ., concur.