| People v Ballard |
| 2021 NY Slip Op 07579 [200 AD3d 1476] |
| December 30, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Robert Ballard, Also Known as Go,Appellant. |
Angela M. Kelley, Albany, for appellant.
Meagan K. Galligan, District Attorney, Monticello (Rachel I. Kesten of counsel), forrespondent.
Egan Jr., J.P. Appeals (1) from a judgment of the Supreme Court (Schick, J.), rendered June26, 2017 in Sullivan County, convicting defendant upon his pleas of guilty of the crimes ofconspiracy in the second degree, criminal possession of a weapon in the second degree andcriminal possession of a controlled substance in the second degree, and (2) by permission, froman order of said court, entered March 2, 2020 in Sullivan County, which denied defendant'smotion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
Defendant and several codefendants, including his wife, were charged in an indictment withoffenses related to their involvement in a narcotics distribution ring and, in his case, weaponpossession. In satisfaction of the charges against defendant and with assurances that the Peoplewould recommend both that he serve no more than 19 years in prison and that his wife serve onlya term of probation supervision in connection with a plea resolving the charges against her,defendant pleaded guilty to conspiracy in the second degree, criminal possession of a controlledsubstance in the first degree and criminal possession of a weapon in the second degree. Hefurther purportedly waived his right to appeal as part of the agreement. During the plea colloquy,Supreme Court advised defendant that it would likely sentence him to a total of 14 years inprison and that, if it could not do so, it would allow him to withdraw his guilty plea.
After the parties realized that defendant was a second felony drug offender previouslyconvicted of a violent felony who could not be sentenced to less than 15 years in prison on thedrug possession count, they agreed to modify the plea arrangement so that, as to said count,defendant would plead guilty to a reduced charge of criminal possession of a controlledsubstance in the second degree and forfeit certain monies and property (see Penal Law§ 70.71 [4]). He entered a plea to that charge following a colloquy. Supreme Courtthen sentenced defendant to concurrent terms of 14 years in prison to be followed by five years ofpostrelease supervision on the drug possession conviction, 7
We affirm. The People initially concede, and we agree, that defendant's appeal waiver wasinvalid (see People v Jones, 199AD3d 1069, 1069-1070 [2021]; People v Barrales, 179 AD3d 1313, 1314-1315 [2020]).Nevertheless, "[i]n the absence of a motion to withdraw his plea, defendant's challenge to thevoluntariness of his plea was not preserved in his direct appeal" (People v Allevato, 170 AD3d1264, 1265 [2019], lv denied 34 NY3d 949 [2019]; see People v Dickerson, 198 AD3d1190[*2], 1192-1193 [2021]). The narrow exception to thepreservation requirement does not apply, as he did not make any statements during either pleacolloquy that were inconsistent with his guilt or called the voluntariness of his pleas into question(see People v Johnson, 194 AD3d1267, 1269 [2021]; People vStanley, 189 AD3d 1818, 1818 [2020]). To the extent that defendant advances anineffective assistance of counsel claim upon his direct appeal, and that argument survives hisguilty pleas, it is similarly unpreserved (see People v Stanley, 189 AD3d at 1818;People v Allevato, 170 AD3d at 1265). Finally, defendant's claim of a Bradyviolation is belied by the record.
Turning to the appeal from the order denying defendant's CPL article 440 motion, he arguedthat counsel rendered ineffective assistance by giving him bad advice to forgo his pendingmotion to suppress evidence recovered from his vehicle during a traffic stop and pleadguilty.[FN*] First, althoughnot denominated to defendant's liking, the record confirms that counsel did appropriately move tosuppress the evidence recovered from that stop. There was nothing ineffective in counsel'sdownplaying the importance of defendant's claim that the stop was pretextual, as a valid basisexisted for the stop (see People v Robinson, 97 NY2d 341, 346 [2001]; People v Blandford, 190 AD3d1033, 1035 [2021], affd 37 NY3d 1062 [2021]). Suppression would not have beenwarranted, in other words, and counsel was not obliged to raise an issue that stood no chance ofsuccess (see People v Caban, 5NY3d 143, 152 [2005]; People vRuffin, 191 AD3d 1174, 1182 [2021], lv denied 37 NY3d 960 [2021]).Defendant's remaining complaints amount to the assertion that, had counsel not urged him toplead guilty and "giv[e] up his right to pretrial hearings to determine the admissibility of anyevidence against [him]," Supreme Court might have credited the accounts offered by him and hiswife as to how the traffic stop unfolded and suppressed the evidence recovered from his vehicle.As those "allegations fail to establish any basis upon which to find . . . that counsellacked a strategic reason for" urging defendant to forgo the hearing and pleadguilty—"namely, the advantageous plea offer" that resolved the charges against him andlimited both his and his wife's sentencing exposure—they give no reason to believe thatcounsel was ineffective (People vChaney, 160 AD3d 1281, 1285 [2018], lv denied 31 NY3d 1146 [2018]; see People v Lewis, 138 AD3d1346, 1349 [2016], lv denied 28 NY3d 1073 [2016]). Thus, as the foregoingallegations, even if credited, do not demonstrate that defendant was deprived of meaningfulrepresentation, Supreme Court properly denied his motion without a hearing (see People v Blanford, 179 AD3d1388, 1394 [2020], lv denied 35 NY3d 968 [2020]; People v Jones, 161 AD3d 1311,1313-1314 [2018], lv denied 31 NY3d 1118 [2018]).
Lynch, Clark, Aarons and Pritzker, JJ., concur. Ordered that the judgment [*3]and order are affirmed.
Footnote *:Defendant now suggests thatcounsel also failed to provide meaningful representation in connection with sentencing issues, aclaim that would have been appropriately raised upon his CPL article 440 motion as part of anineffective assistance argument "rely[ing] upon matters appearing both in the record on directappeal and outside of the record" (People v Thacker, 173 AD3d 1360, 1361 n 2 [2019], lvdenied 34 NY3d 938 [2019]; seePeople v Burks, 187 AD3d 1405, 1407-1408 [2020], lv denied 36 NY3d 1095[2021]). It was not raised in his motion, however, and is therefore unpreserved for our review (see People v Dorsey, 170 AD3d1325, 1326 [2019], lv denied 33 NY3d 1068 [2019]).