| People v Podeswa |
| 2022 NY Slip Op 03146 [205 AD3d 1139] |
| May 12, 2022 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jonathan Podeswa, Appellant. |
Adam G. Parisi, Schenectady, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Pritzker, J. Appeals (1) from a judgment of the Supreme Court (McDonough, J.), renderedAugust 31, 2018 in Albany County, convicting defendant upon his plea of guilty of the crime ofrape in the first degree, and (2) by permission, from an order of said court, entered August 28,2020 in Albany County, which denied defendant's motion pursuant to CPL 440.10 to vacate thejudgment of conviction, without a hearing.
In May 2018, defendant was charged by indictment with one count of predatory sexualassault against a child stemming from allegations that, on multiple occasions, he engaged in actsof sexual conduct with a minor (hereinafter the victim). He subsequently accepted a pleaagreement, pursuant to which he pleaded guilty to the reduced charge of rape in the first degreeand, as part of the agreement, defendant was also required to waive his right to appeal. Inaccordance with the plea agreement, Supreme Court ultimately sentenced him, as a second felonyoffender, to a prison term of 12 years followed by 25 years of postrelease supervision, whichwould run consecutively to a separate sentence for a parole violation connected to an unrelatedcrime. Defendant then moved to vacate the judgment of conviction pursuant to CPL 440.10 onineffective assistance grounds based upon counsel's failure to seek suppression of the search ofhis cell phone and to investigate an alleged recantation by the victim. Following the People'sresponse in opposition, Supreme Court denied the motion without a hearing, finding thechallenge to be wholly record-based and otherwise unsupported by sufficient information.Defendant appeals from the judgment of conviction and, by permission, from the denial of hisCPL article 440 motion.
Initially, we agree with defendant that the appeal waiver is overbroad and, thus, his waiver ofthe right to appeal was not knowing, voluntary and intelligent and is therefore unenforceable. Wehave found this exact written waiver, which was utilized by the Albany County DistrictAttorney's office, to be overly broad (seePeople v Stratton, 201 AD3d 1201, 1202 [2022]; People v Robinson, 195 AD3d 1235, 1236 [2021]). SupremeCourt's oral colloquy did not cure its defects (see People v Anthony, 201 AD3d 1028, 1029 [2022]; People v Winters, 196 AD3d 847,848 [2021], lv denied 37 NY3d 1030 [2021]).
Next, defendant seeks to vacate his plea on the ground that it was not knowing, intelligentand voluntary because Supreme Court failed to advise him of all of his Boykin rights.Insofar as defendant did not file a postallocution motion to withdraw the plea despite anopportunity to do so, this issue is unpreserved for review (see People v Miller, 190 AD3d 1029, 1030 [2021]; People v Apelles, 185 AD3d 1298,1299 [2020], lv denied 35 NY3d 1092 [2020]). The narrow exception to the preservationrule does not apply since defendant did not make any statements during the plea colloquy thatwere "inconsistent with his guilt, negated an essential element [*2]of the charged crime or otherwise called into question thevoluntariness of his plea" (People vGamble, 190 AD3d 1022, 1024 [2021], lv denied 36 NY3d 1097 [2021]; see People v Guerrero, 194 AD3d1258, 1260 [2021], lv denied 37 NY3d 992 [2021]). Recognizing that his argumentmay be unpreserved, defendant asks us to take corrective action in the interest of justice. Wedecline to do so. As for defendant's further request, that this Court reduce his agreed-uponsentence in the interest of justice, we find no abuse of discretion or extraordinary circumstancesthat would warrant such a reduction (seePeople v Lenahan, 201 AD3d 1255, 1256 [2022]; People v Harris, 201 AD3d 1030, 1031 [2022], lv denied 38NY3d 950 [2022]).
Turning now to defendant's CPL 440.10 motion, "[o]n a motion to vacate a judgment ofconviction under CPL 440.10, a hearing is only required if the submissions show that thenonrecord facts sought to be established are material and would entitle the defendant to relief.Furthermore, a court may deny a vacatur motion without a hearing if it is based on thedefendant's self-serving claims that are contradicted by the record or unsupported by any otherevidence" (People v Marte-Feliz,192 AD3d 1397, 1397-1398 [2021] [internal quotation marks, brackets and citationsomitted]; see CPL 440.30 [4]; People v Beverly, 196 AD3d 864, 865 [2021], lv denied 37NY3d 1058 [2021]).
Initially, inasmuch as defendant's arguments of ineffective assistance of counsel involve bothrecord and nonrecord-based claims, Supreme Court erred in failing to address these claims intheir entirety as part of a review of counsel's overall performance in the context of the CPLarticle 440 motion (see People vDrayton, 189 AD3d 1888, 1891-1892 [2020], lv denied 36 NY3d 1119 [2021];People v Taylor, 156 AD3d 86,91-92 [2017], lv denied 30 NY3d 1120 [2018]). Nevertheless, defendant's ineffectiveassistance claims are without merit. To that end, one alleged failure that defendant points to isthat counsel did not move to suppress the search of defendant's cell phone by defendant's paroleofficer. However, in his motion, "defendant failed to demonstrate the absence of any strategic orother legitimate explanation for . . . counsel's failure to seek suppression, which isnecessary to rebut the presumption that counsel acted in a competent manner and exercisedprofessional judgment in not seeking suppression" (People v Vecchio, 228 AD2d 820,821 [1996]; see People v Stahl, 141AD3d 962, 966 [2016], lv denied 28 NY3d 1127 [2016], cert denied 583 US&mdash, 138 S Ct 222 [2017]). Indeed, counsel may have concluded that such a motion wasfutile, as the challenged search and seizure could have been justified under the parole officer'sduty "to detect and to prevent parole violations" given that, as the People indicated, defendantwas under investigation for allegations of unwanted sexual conduct at the time of the search andseizure (People v Huntley[*3], 43 NY2d 175, 181 [1977];see People v Johnson, 49 AD3d1244, 1245 [2008], lv denied 10 NY3d 865 [2008]).
Defendant also contends that counsel was ineffective for failing to investigate an allegedrecantation by the victim. In support of his motion, however, which is based upon informationoutside the record, defendant did not proffer any sworn allegations substantiating his claim and,instead, proffered only his own affidavit, which merely "recit[es] the chronology of his case" (People v Kennedy, 46 AD3d 1099,1101 [2007], lv denied 10 NY3d 841 [2008]; see CPL 440.30 [4] [b]; compare People v Stetin, 192 AD3d1331, 1332-1334 [2021]). In any event, we cannot say that the failure to investigate thealleged recantation constitutes the ineffective assistance of counsel, given that "recantationevidence is inherently unreliable" (People v Beaver, 150 AD3d 1325, 1325-1326 [2017] [internalquotation marks, brackets, ellipsis and citations omitted]; see People v Lane, 100 AD3d 1540, 1541 [2012], lv denied20 NY3d 1063 [2013]) and the other significant evidence against defendant, including his ownadmissions to committing the offense (see People v Kamp, 161 AD3d 1394, 1395 [2018], lvdenied 31 NY3d 1150 [2018]). Here, the record evinces that counsel secured a favorable pleadeal that greatly minimized defendant's sentencing exposure. Notably, defendant attested duringthe plea colloquy that counsel had explained to him the People's evidence in this case as well asall possible defenses that he could present and further assented to being "highly satisfied with hisrepresentation." In view of the foregoing, we do not discern an abuse of discretion in SupremeCourt's denial of defendant's CPL article 440 motion without a hearing (see People vMarte-Feliz, 192 AD3d at 1399; People v Kennedy, 46 AD3d at 1101).
Egan Jr., J.P., Clark, Ceresia and Fisher, JJ., concur. Ordered that the judgment and order areaffirmed.