| People v Johnson |
| 2021 NY Slip Op 03223 [194 AD3d 1267] |
| May 20, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Robert Johnson, Appellant. |
Todd G. Monahan, Schenectady, for appellant.
David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Lynch, J. Appeals (1) from a judgment of the County Court of Ulster County (Williams, J.),rendered February 7, 2019, convicting defendant upon his plea of guilty of the crime of attemptedassault in the second degree, and (2) by permission, from an order of said court, entered October15, 2019, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment ofconviction, without a hearing.
Defendant was indicted and charged with one count of assault in the second degree. Thecharge stemmed from an incident wherein defendant threw a mixture of bleach and water into theface of a coworker. Pursuant to a negotiated plea agreement, defendant pleaded guilty to anamended indictment charging him with attempted assault in the second degree with theunderstanding that he would be sentenced—as a second felony offender—to aprison term of 2 to 4 years. The plea agreement also required defendant to waive his right toappeal. At sentencing, defendant asked for leniency, and his comments, as well as the statementsthat he made to the Probation Department, prompted County Court to briefly adjourn the matterin order to ascertain whether defendant was raising any defenses to the crime. In response toCounty Court's subsequent inquiry, defendant repeatedly assured the court that he had discussedany potential defenses with counsel and had made a knowing decision not to pursue suchdefenses. County Court then sentenced defendant to the agreed-upon term of imprisonment.
Defendant thereafter filed a pro se motion to vacate the judgment of conviction pursuant toCPL 440.10 asserting, insofar as is relevant here, that he was denied the effective assistance ofcounsel. The People opposed the requested relief, and County Court denied defendant's motionwithout a hearing. Defendant appeals from the judgment of conviction and, by permission, fromthe order denying his CPL 440.10 motion.
Defendant, as so limited by his brief, argues—both upon his direct appeal from thejudgment of conviction and with respect to his appeal from the denial of his CPL 440.10motion—that he was denied the effective assistance of counsel, which, in turn, renderedhis plea involuntary. Specifically, defendant cites counsel's failure to challenge the sufficiency ofthe evidence before the grand jury, make a timely motion to dismiss the indictment and/orexplore a potential justification defense, and further asserts that counsel pressured him to pleadguilty.
As County Court aptly observed, defense counsel's failure to challenge the sufficiency of theevidence before the grand jury and to make a timely motion to dismiss the indictment are not theproper subjects of a CPL 440.10 motion, as such claims are based on facts that either weresufficiently apparent from the face of the record or—through the exercise of defendant'sdue diligence—could have been readily made to appear upon the record in a manner thatwould have permitted adequate appellate review upon defendant's [*2]direct appeal (see CPL 440.10 [2] [b]; [3] [a]; People v Spradlin, 188 AD3d1454, 1460 [2020]). In this regard, "[t]o the extent that defendant's ineffective assistance ofcounsel claim impacts upon the voluntariness of his plea, such claim survives his unchallengedappeal waiver but is unpreserved for our review in the absence of an appropriate postallocutionmotion" (People v Stanley, 189AD3d 1818, 1818 [2020]; see CPL 220.60 [3]; People v Cole, 166 AD3d 1219, 1219 [2018], lv denied 33NY3d 946 [2019]). The narrow exception to the preservation requirement is inapplicable, "asdefendant did not make any statements during the plea colloquy that were inconsistent with hisguilt or otherwise called into question the voluntariness of his plea" (People v Crossley, 191 AD3d1046, 1047 [2021]; People v Stanley, 189 AD3d at 1818).
As for the balance of defendant's ineffective assistance of counsel claim, "a court may deny a[CPL 440.10] motion without a hearing if it is based on the defendant's self-serving claims thatare contradicted by the record or unsupported by any other evidence and there is no reasonablepossibility that such allegations are true" (People v Stanley, 189 AD3d at 1819 [internalquotation marks, brackets and citation omitted]; see CPL 440.30 [4] [d]). With respect tocounsel's asserted failure to explore the justification defense, such defense was raised before andconsidered by the grand jury. When defendant's statements to the Probation Departmentsuggested that he was claiming a defense to the underlying crime, County Court—prior tosentencing—afforded defendant an opportunity to confer with counsel and thereafterquestioned defendant at length regarding his assertion of the justification defense. In response,defendant assured the court that he had thoroughly discussed this and other defenses withcounsel, agreed that the justification defense would not be viable should the matter proceed totrial and made clear that he had no desire to withdraw his plea. Defendant's related assertion, thatcounsel pressured him to plead guilty, is similarly belied by the record, which reflects thatdefendant repeatedly stated—both during the course of the plea colloquy and prior tosentencing—that he was fully satisfied with counsel's services and that no one was forcinghim to plead guilty (see CPL 440.30 [4] [d]; People v Blanford, 179 AD3d 1388, 1394 [2020], lv denied35 NY3d 968 [2020]). As defendant's motion was otherwise supported only by his ownconclusory affidavit, County Court did not abuse its discretion in denying defendant's motionwithout a hearing (see People v Stanley, 189 AD3d at 1819; People v Spradlin,188 AD3d at 1460-1461; People v Blanford, 179 AD3d at 1394). Defendant's remainingcontentions, to the extent not specifically addressed, have been examined and found to be lackingin merit.
Garry, P.J., Egan Jr. and Colangelo, JJ., concur. Ordered that the judgment and order areaffirmed.