| People v Phillip |
| 2021 NY Slip Op 06721 [200 AD3d 1108] |
| December 2, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, |
Jane M. Bloom, Monticello, for appellant.
Meagan K. Galligan, District Attorney, Monticello (Kristin L. Hackett of counsel), forrespondent.
Garry, P.J. Appeals (1) from a judgment of the Supreme Court (Schick, J.), rendered June 26,2017 in Sullivan County, convicting defendant upon his plea of guilty of the crimes of conspiracyin the second degree and criminal possession of a controlled substance in the first degree, and (2)by permission, from an order of said court, entered March 2, 2020 in Sullivan County, whichdenied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, withouta hearing.
Pursuant to a negotiated plea agreement, defendant pleaded guilty to one count of conspiracyin the second degree and one count of criminal possession of a controlled substance in the firstdegree. Prior to sentencing, defendant moved, pro se, to withdraw his plea. Defense counsel didnot adopt this motion and informed Supreme Court that he did not feel that he had a legal orfactual basis for doing so, and the court denied the motion. In June 2017, the court sentenceddefendant to a prison term of 12 years to be followed by five years of postrelease supervision forhis drug possession conviction, together with a lesser concurrent term for his conspiracyconviction. In November 2019, defendant moved, pro se, to vacate the judgment of convictiondue to, among other things, the alleged ineffective assistance of counsel. The court denieddefendant's motion without a hearing. Defendant appeals from the judgment of conviction and,with this Court's permission, from the order denying his CPL article 440 motion.
Initially, defendant's argument that his plea was involuntary because he was not informed ofhis possible sentencing exposure is unpreserved, as "defendant did not raise it in his motion towithdraw his guilty plea" (People vWilliams, 189 AD3d 1978, 1980 [2020]; see People v Borden, 91 AD3d 1124, 1126 [2012], lvdenied 19 NY3d 862 [2012]). The argument that his plea was coerced by the connected pleasof other codefendants, including his sister, is similarly unpreserved. Although a defendant'sstatements at sentencing may trigger the narrow exception to the preservation requirement (see People v Gresham, 151 AD3d1175, 1178 [2017]), here, defendant's bare assertion that the connected pleas forced him toplead guilty did not raise a "legitimate question about the voluntariness of defendant's plea" (People v Farnsworth, 140 AD3d1538, 1540 [2016]; see People vWalker, 173 AD3d 1561, 1562 [2019]). A plea agreement is not coercive "simplybecause it affords a benefit to a loved one, as long as the plea itself is knowingly, voluntarily andintelligently made" (People v Etkin, 284 AD2d 579, 580 [2001], lv denied 96NY2d 862 [2001]), and "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" (People v Fiumefreddo, 82 NY2d 536, 545 [1993] [internalquotation marks, brackets and citation omitted]). In this case, Supreme Court conducted "adetailed [*2]plea colloquy wherein defendant admitted his guilt,repeatedly verified that he was not being coerced or threatened into pleading guilty. . . [and] acknowledged that he was pleading guilty of his own free will"(People v Walker, 173 AD3d at 1562).
Defendant received the statutory minimum prison sentence of 12 years on one conviction,concurrent to a lesser sentence, followed by five years of postrelease supervision. This was ahighly favorable agreement given the considerable evidence of guilt and the fact that he wascharged with five felonies, each carrying a potential maximum prison sentence of either 12 or 24years. The advantageous nature of the agreement undercuts defendant's contention that his pleawas coerced, and we do not find that Supreme Court abused its discretion in declining to conducta further evidentiary hearing following defendant's statement at sentencing (see People vFiumefreddo, 82 NY2d at 547-548).
Defendant contends, and the People concede, that defense counsel improperly took a positionadverse to defendant's motion to withdraw his plea. "[A] defendant has a right to the effectiveassistance of counsel on his or her motion to withdraw a guilty plea" (People v Mitchell, 21 NY3d 964,966 [2013]; accord People vFaulkner, 168 AD3d 1317, 1318 [2019]). "If counsel takes a position that is adverse tohis or her client, a conflict of interest arises and the trial court must assign new counsel torepresent the defendant on the motion" (People v Faulkner, 168 AD3d at 1319 [citationsomitted]; see People v Thaxton, 191AD3d 1166, 1167-1168 [2021], lv denied 37 NY3d 960 [2021]). "[C]ounsel takes aposition adverse to his [or her] client when stating that the defendant's motion lacks merit" (People v Washington, 25 NY3d1091, 1095 [2015]; see People vMcCray, 106 AD3d 1374, 1375 [2013]). Here, before the motion was decided, defensecounsel stated on the record that he did not believe there was a factual or legal basis fordefendant's motion. At that point, Supreme Court should have assigned a new attorney torepresent defendant on the motion to withdraw the plea (see People v Oliver, 158 AD3d 990, 991 [2018]; People v Prater, 127 AD3d 1249,1250 [2015]; People v McCray, 106 AD3d at 1375). Accordingly, we vacate the sentenceand remit for Supreme Court to make such an assignment and reconsider defendant'smotion.
Next, defendant contends that Supreme Court erred in denying his CPL article 440 motionwithout a hearing on the ground of ineffective assistance of counsel. "To establish a claim ofineffective assistance of counsel, a defendant is required to demonstrate that he or she was notprovided meaningful representation and that there is an absence of strategic or other legitimateexplanations for counsel's allegedly deficient conduct" (People v Porter, 184 AD3d 1014, 1018 [2020] [internal quotationmarks and citations omitted], lv denied 35 NY3d 1069 [2020]; see People v Bowen, 185 AD3d1219, 1221 [2020]). "In the context [*3]of a guilty plea, adefendant has been afforded meaningful representation when he or she receives an advantageousplea and nothing in the record casts doubt upon the apparent effectiveness of counsel" (People v Pace, 192 AD3d 1274,1275 [2021] [internal quotation marks and citations omitted], lv denied 37 NY3d 973[2021]; accord People v LaPierre,195 AD3d 1301, 1306 [2021]).
Defendant contended in his motion that he was denied the effective assistance of counsel ashis attorney failed to inform Supreme Court that the People had not turned over all Bradymaterials. It appears from defendant's submissions that the investigation against him involved theFBI working in concert with the State Police, and the People allegedly failed to provide FBImaterials in response to defense counsel's Brady request. However, it is possible that thefailure to pursue the materials was a legitimate strategic choice, as that effort may have extendedlitigation past the point at which the People were willing to offer the plea agreement. Thus,defendant has not demonstrated that defense counsel's failure to pursue these Bradymaterials was ineffective assistance, particularly in light of the highly advantageous pleaagreement that was secured (see CPL 440.30 [4] [b]; People v Griffin, 165 AD3d 1316, 1318 [2018]; People v Macduff, 83 AD3d 1292,1293 [2011]). Defendant's further arguments relative to ineffective assistance of counsel arewithout merit.
Defendant has abandoned his arguments related to other grounds raised in his CPL 440.10motion, as he has not addressed them in his brief (see People v Bethune, 80 AD3d 1075, 1076 n 1 [2011], lvdenied 17 NY3d 792 [2011]; Peoplev Hoffler, 74 AD3d 1632, 1633 n 2 [2010], lv denied 17 NY3d 859 [2011]).
Egan Jr., Aarons, Reynolds Fitzgerald and Colangelo, JJ., concur. Ordered the judgment ismodified, on the law, by vacating the sentence imposed; matter remitted to the Supreme Courtfor the assignment of new counsel and reconsideration of defendant's motion to withdraw hisplea; and, as so modified, affirmed. Ordered that the order is affirmed.