| People v Goodwalt |
| 2022 NY Slip Op 03029 [205 AD3d 1070] |
| May 5, 2022 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Ted Goodwalt, Appellant. |
Angela M. Kelley, Albany, for appellant.
David J. Clegg, District Attorney, Kingston (Jason J. Kovacs of counsel), forrespondent.
Aarons, J. Appeals (1) from a judgment of the County Court of Ulster County (Williams, J.),rendered January 18, 2018, convicting defendant upon his plea of guilty of the crime ofaggravated family offense, (2) from a judgment of said court, rendered January 18, 2018, whichrevoked defendant's probation and imposed a sentence of imprisonment, and (3) by permission,from an order of said court, entered March 20, 2019, which denied defendant's motion pursuantto CPL 440.10 to vacate the judgment of conviction, without a hearing.
In January 2017, defendant pleaded guilty to attempted assault in the second degreestemming from his assault on his girlfriend (hereinafter the victim) with whom he lived, insatisfaction of numerous other charges, and was thereafter sentenced to five years of probation.On June 16, 2017, while on probation and in violation of a no-harassment order of protection,defendant returned home after a night of drinking and assaulted and strangled the victim as sheslept. Defendant was thereafter charged with violating the conditions of probation by, amongother conduct, violating the order of protection, assaulting the victim and consuming beer.Pursuant to a negotiated plea agreement that required a waiver of appeal, defendant waivedindictment and pleaded guilty as charged in a superior court information to the crime ofaggravated family offense stemming from the June 16, 2017 incident. That plea satisfied upwardsof 50 potential charges for violating the order of protection in place to protect the victim.Defendant also admitted violating the conditions of probation by committing additional crimeson June 16, 2017. Consistent with the agreement, defendant was sentenced, as an acknowledgedsecond felony offender, to a prison term of 2 to 4 years upon his conviction of aggravated familyoffense. With regard to the probation violation, County Court revoked defendant's probation andimposed a prison term of 1
Defendant thereafter moved, pro se, under CPL 440.10, to vacate the judgment convictinghim of aggravated family offense, arguing, among other things, that he had been denied theeffective assistance of counsel, which the People opposed. County Court denied the motion,without a hearing. Defendant appeals from both judgments and, with permission, from the orderdenying his motion to vacate.
Under the circumstances of this case, defendant's waiver of appeal was not made knowingly,intelligently and voluntarily (see Peoplev Moore, 201 AD3d 1209, 1210 [2022]; People v Griffen, 200 AD3d 1195, 1195-1196 [2021], lvdenied 37 NY3d 1161 [2022]). The record reflects that County Court utilized overbroadlanguage when explaining that, by waiving the right to appeal, such right was "gone forever" anddefendant could "never have it back on this case." The written waiver likewise contained someoverbroad language, and "the court [*2]failed to ensure thatdefendant understood the distinction that some appellate review survived the appeal waiver" (People v Mayo, 195 AD3d 1313,1314 [2021] [internal quotation marks and citations omitted]; see People v Lunan, 196 AD3d 969, 970 [2021]). Accordingly,defendant is not precluded from challenging the imposed sentence as harsh and excessive (seePeople v Lunan, 196 AD3d at 970; People v Deming, 190 AD3d 1193, 1194 [2021], lv denied36 NY3d 1119 [2021]). Nevertheless, the record fails to disclose extraordinary circumstances oran abuse of the court's discretion so as to warrant modification of the sentence in the interest ofjustice (see People v Latifi, 171AD3d 1351, 1351 [2019]; People vDunster, 146 AD3d 1029, 1031 [2017], lv denied 29 NY3d 997 [2017]).
Defendant's challenge to his guilty plea as not knowing, voluntary and intelligent survivesregardless of the validity of his waiver of appeal (see People v Smith, 188 AD3d 1357, 1357 [2020]), but was notpreserved by an appropriate postallocution motion despite ample opportunity to do so(see CPL 220.60 [3]; People vWilliams, 27 NY3d 212, 219-222 [2016]). Moreover, defendant did not make anystatements during the plea allocution that would implicate the narrow exception to thepreservation requirement (see People v Lopez, 71 NY2d 662, 666 [1988]). Contrary tohis claim, defendant made no statements during the plea proceeding suggesting that he acted withjustification at the time of the June 2017 assault, admitting without qualification that he hadintentionally caused physical injury to the victim. The prior claims during the bail applicationprocess and defendant's subsequent, postplea comments to the Probation Department during thepresentence investigation did not impose a duty of inquiry upon County Court regarding potentialdefenses (see People v Carston, 163AD3d 1166, 1168 [2018], lv denied 32 NY3d 1002 [2018]; People v Hopper, 153 AD3d 1045,1047 [2017], lv denied 30 NY3d 1061 [2017]; People v Buck, 136 AD3d 1117, 1118 and n 2 [2016]). Moreover,the court had no obligation to review all potential defenses that might be waived by the plea (see People v Miller, 70 AD3d1120, 1121 [2010], lv denied 14 NY3d 890 [2010]). Defendant's argument that hewas unaware that the agreement provided for consecutive sentences is belied by the record.
Defendant's claim that counsel failed to provide meaningful representation is alsounpreserved for our review on direct appeal (see People v Morehouse, 183 AD3d 1180, 1183 [2020], lvdenied 35 NY3d 1068 [2020]). His assertions as to what counsel advised or failed to adviseregarding possible defenses and the strength of the People's case are outside of the record ondirect appeal (see People v Johnson,194 AD3d 1267, 1269 [2021]; People v Miller, 190 AD3d 1029, 1031 [2021]; People v Weidenheimer, 181 AD3d1096, 1097 [2020]).
Turning to defendant's CPL 440.10 motion, he incorrectly asserts that he was unlawfullycharged with an aggravated [*3]family offense in that he wasnever convicted of any "specified offense" under Penal Law § 240.75 (2). Anaccusatory instrument charging "aggravated family offense must provide allegations of factdemonstrating that defendant has committed a statutorily enumerated 'specified offense' pursuantto Penal Law § 240.75 (2) and, within the preceding five years, has also beenconvicted of at least one other specified offense" (People v Lapham, 172 AD3d 1634, 1635-1636 [2019], lvdenied 33 NY3d 1070 [2019], citing Penal Law § 240.75 [1]). Defendant wascharged with and admitted to committing assault in the third degree against a member of hishousehold on June 16, 2017 (see Penal Law § 120.00 [1]), a "specifiedoffense" under Penal Law § 240.75 (2), and the accompanying special information(see CPL 200.63 [1]) established, as he admitted, that he had previously been convictedof attempted assault in the second degree earlier in 2017, also a "specified offense" under PenalLaw § 240.75 (2) (see Penal Law §§ 110.00, 120.05[1]).
Given that defendant's mixed claims of ineffective assistance of counsel are premised onboth record-based and nonrecord-based allegations, they are properly reviewed in their entiretyon defendant's appeal from the denial of his CPL 440.10 motion (see People v White-Span, 182 AD3d909, 914 [2020], lv denied 35 NY3d 1071 [2020]; People v Taylor, 156 AD3d 86, 92[2017], lv denied 30 NY3d 1120 [2018]). Defendant's claim that counsel was ineffectivefor failing to advocate for concurrent sentences or to advise him that he faced consecutivesentences is unavailing, as County Court expressly made clear that the sentences would runconsecutively, and defendant accepted those terms. Defendant's additional allegations are notsubstantiated by his own affidavit in support of the motion. Furthermore, no attorney affidavitwas submitted, and no explanation is provided for its absence (see People v Stanley, 189 AD3d1818, 1819 [2020]). Moreover, "[i]n the context of a guilty plea, a defendant has beenafforded meaningful representation when he or she receives an advantageous plea and nothing inthe record casts doubt upon the apparent effectiveness of counsel" (People v Phillip, 200 AD3d 1108,1110 [2021] [internal quotation marks and citations omitted]). The record reflects that defendantassured the court during the plea allocution that he was satisfied with counsel's representationand had no questions, he received a favorable plea deal that resolved upwards of 50 potentialcharges for violating the order of protection and he failed to demonstrate the lack of strategic orother legitimate reasons for counsel's course of action (see People v Agueda, 202 AD3d 1153, 1156 [2022]). Accordingly,the court did not abuse its discretion in summarily denying defendant's CPL 440.10 motion.
Garry, P.J., Lynch, Colangelo and Ceresia, JJ., concur. Ordered that the judgments and orderare affirmed.