| People v Agueda |
| 2022 NY Slip Op 00693 [202 AD3d 1153] |
| February 3, 2022 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Leoneudi Agueda, Appellant. |
Mark Diamond, Albany, for appellant.
David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Reynolds Fitzgerald, J. Appeals (1) from a judgment of the County Court of Ulster County(Williams, J.), rendered July 27, 2018, convicting defendant upon his plea of guilty of the crimeof criminal sexual act in the second degree, and (2) by permission, from an order of said court(Rounds, J.), entered August 17, 2020, which denied defendant's motion pursuant to CPL 440.10to vacate the judgment of conviction, without a hearing, and (3) by permission, from an order ofsaid court (Rounds, J.), entered December 8, 2020, which, upon reargument, adhered to its priordecision.
Pursuant to a negotiated plea agreement, defendant pleaded guilty as charged in anindictment to criminal sexual act in the second degree and admitted that he had oral sexualcontact with the 12-year-old victim. As part of that agreement, defendant waived his right toappeal and signed a written waiver of appeal in open court. In exchange, the People agreed not topresent to the grand jury—which had been extended to consider additionalcharges—more serious charges including A-II and B violent felonies and a bribery chargestemming from defendant's alleged attempts to bribe witnesses appearing before the grand jury.County Court (Williams, J.) thereafter imposed the promised seven-year prison sentence to befollowed by 10 years of postrelease supervision.
Two years later, defendant moved pursuant to CPL 440.10 to vacate the judgment ofconviction, contending, among other things, that his plea was not knowing, voluntary andintelligent in that he was pressured to accept the plea deal and was deprived of the effectiveassistance of counsel. The People opposed the motion. County Court (Rounds, J.) denied themotion on the ground that the issues raised are based upon matters that either were partof—or through the exercise of due diligence could have been made to appearupon—the trial record and are not properly the subject of a CPL article 440 motion(see CPL 440.10 [3] [a]). Defendant thereafter moved to reargue the motion on theground that he had not been served with, or had an opportunity to reply to, the People'saffirmation in opposition. County Court granted reargument, considered defendant's paperssubmitted in reply and adhered to its decision denying the motion to vacate the judgment.Defendant appeals from the judgment of conviction and, with permission, from the ordersdenying his CPL 440.10 motion.
Initially, with respect to the judgment of conviction, defendant's challenge to the agreed-uponsentence as harsh and excessive is precluded by his unchallenged oral and written waiver ofappeal (see People v Lopez, 6 NY3d248, 256 [2006]; People vBrickhouse, 181 AD3d 1057, 1057 [2020], lv denied 35 NY3d 1025 [2020]).Although defendant's further argument that his guilty plea was not knowing, intelligent andvoluntary, in that it was the product of coercion and undue pressure, survives his unchallengedappeal waiver, it is unpreserved given that the record does not reflect that [*2]he made an appropriate postallocution motion despite having hadample time in which to do so (see CPL 220.60 [3]; People v Williams, 27 NY3d 212, 219-222 [2016]; People v McCoy, 198 AD3d 1021,1022 [2021]). Defendant's related contention that he received ineffective assistance of counsel, tothe extent that it implicates the voluntariness of his plea, also survives the appeal waiver but issimilarly unpreserved (see People vVilbrin, 183 AD3d 1012, 1013 [2020], lv denied 35 NY3d 1049 [2020]).Moreover, defendant did not make any statements during the plea colloquy or sentencing thattriggered the narrow exception to the preservation requirement (see People v Lopez, 71NY2d 662, 666 [1988]; People v McCoy, 198 AD3d at 1022-1023). Were we to addressthe challenge to his plea, we would find that it is unsupported by the record, which reflects thatCounty Court (Williams, J.) carefully explained the terms of the plea agreement and that theadditional charges were only a possibility, afforded defendant ample time to discuss the pleaterms with defense counsel, and he indicated that he had sufficient time to discuss it with counseland was not being pressured. As such, we would find that the pressure to which defendant nowcontends he was subjected amounts to no more than "the type of situational coercion faced bymany defendants who are offered a plea deal" (People v LaPierre, 189 AD3d 1813, 1815 [2020] [internal quotationmarks and citation omitted], lv denied 36 NY3d 1098 [2021]) and that, after beinginformed of his options, he made "a knowing, voluntary and intelligent choice among alternativecourses of action" (People vConceicao, 26 NY3d 375, 382 [2015] [internal quotation marks and citationomitted]).
Next, defendant contends that County Court (Rounds, J.) erred in denying his CPL article440 motion without a hearing on the ground that he was deprived of the effective assistance ofcounsel. Defendant raised a litany of claims as to how defense counsel was ineffective, includingthat counsel failed to adequately investigate the case, to present possible defenses to the chargesor move to suppress his statements to police, and that counsel coerced his guilty plea and failedto argue for sentencing leniency. However, as County Court noted, defendant's motion papersreflect that most of these issues could have been, but were not, raised before the trial court, priorto sentencing, and argued on direct appeal. That is, these "issues are based upon matters thateither were part of—or through the exercise of due diligence could have been made toappear upon—the trial record" (People v Durham, 195 AD3d 1318, 1321 [2021], citing CPL440.10 [3] [a]). For example, prior to sentencing, defendant was aware that counsel did not moveto suppress his statements, present defenses or argue for sentencing leniency and, nonetheless, heentered a guilty plea, admitted his guilt and accepted the promised sentence without making anyeffort to raise these [*3]issues (see People v Stanley, 189 AD3d1818, 1819 [2020]; People vChaney, 160 AD3d 1281, 1285 [2018], lv denied 31 NY3d 1146 [2018]).Moreover, "the failure to request a suppression hearing, standing alone, does not establish thatdefense counsel provided ineffective assistance, particularly in the absence of any basis uponwhich to conclude that a defendant had a colorable claim or that counsel's actions were notpremised upon a legitimate strategy" (People v Chaney, 160 AD3d at 1285 [internalquotation marks and citation omitted]).
Defendant's claim of coercion based upon the advisement that he could face more seriouscharges if he did not accept the plea offer is, in fact, raised on this direct appeal, and, aspreviously noted, found to be unpreserved for direct appellate review (see CPL 440.10 [3][a]); his remaining conclusory claim that counsel pressured him is unsupported by any evidenceand contradicted by his assurances to the court during the plea allocution (see People vStanley, 189 AD3d at 1819). Defendant did not submit an affidavit from trial counsel orexplain its absence (see People v Stanley, 189 AD3d at 1819; People v Betances, 179 AD3d1225, 1226 [2020], lv denied 35 NY3d 968 [2020]). Given that most of thecontentions in the motion could have been—and in some instances have been raised upondefendant's direct appeal, they are not properly the subject of a CPL article 440 motion (seePeople v Chaney, 160 AD3d at 1285). Notably, denial of defendant's motion is consistentwith "the purpose served by a CPL article 440 motion[, which] is to inform a court of facts notreflected in the record and unknown at the time of the judgment. By its very nature, the procedurecannot be used as a vehicle for an additional appeal" (People v Durham, 195 AD3d at1320 [internal quotation marks, brackets and citation omitted]).
Further, "[t]o establish a claim of ineffective assistance of counsel, a defendant is required todemonstrate that he or she was not provided meaningful representation and that there is anabsence of strategic or other legitimate explanations for counsel's allegedly deficient conduct"(People v Porter, 184 AD3d1014, 1018 [2020] [internal quotation marks and citations omitted], lv denied 35NY3d 1069 [2020]). "In the context of a guilty plea, a defendant has been afforded meaningfulrepresentation when he or she receives an advantageous plea and nothing in the record castsdoubt upon the apparent effectiveness of counsel" (People v Phillip, 200 AD3d 1108, 1110 [2021] [internal quotationmarks and citations omitted]). Defendant received a favorable plea deal in that significantly moreserious charges were not pursued, and he has not demonstrated that counsel lacked a strategicreason for his course of action. Under these standards, we do not find that County Court abusedits discretion in denying defendant's motion to vacate the judgment of conviction without ahearing. Defendant's remaining arguments, to the [*4]extent notspecifically addressed, have been examined and found to be lacking in merit.
Lynch, J.P., Clark and Aarons, JJ., concur. Ordered that the judgment and orders areaffirmed.