Opinion
692 KA 17–00583
06-28-2019
The PEOPLE of the State of New York, Respondent, v. Reynaldo PABON, Defendant–Appellant. (Appeal No. 2.)
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed.
Memorandum: Defendant pleaded guilty to arson in the second degree ( Penal Law § 150.15 ). After sentencing, defendant moved to vacate the judgment of conviction pursuant to CPL article 440, asserting in relevant part that defense counsel was ineffective for failing to move to suppress his confession on the ground that it was elicited in violation of his indelible right to counsel. Supreme Court denied the motion without a hearing. A Justice of this Court thereafter granted defendant's motion for leave to appeal, and we now affirm.
Even assuming, arguendo, that defendant's claim of ineffective assistance of counsel is neither forfeited by his guilty plea nor precluded by his valid waiver of the right to appeal (see generally People v. Mangarillo, 152 A.D.3d 1061, 1064 n 2, 59 N.Y.S.3d 572 [3d Dept. 2017] ), we nevertheless conclude that it lacks merit. Notably, both the Second and Third Departments have rejected the exact theory regarding the indelible right to counsel that defendant faults defense counsel for overlooking (see People v. Brown, 174 A.D.2d 842, 842, 571 N.Y.S.2d 347 [3d Dept. 1991] ; People v. Heller, 99 A.D.2d 787, 788, 471 N.Y.S.2d 883 [2d Dept. 1984] ; see also People v. Jordan, 143 A.D.2d 367, 368–369, 532 N.Y.S.2d 409 [2d Dept. 1988], lv denied 73 N.Y.2d 856, 537 N.Y.S.2d 503, 534 N.E.2d 341 [1988] ), and this Court has rejected an argument very similar to those rejected in Brown and Heller (see People v. Brant, 277 A.D.2d 1022, 1022, 715 N.Y.S.2d 348 [4th Dept. 2000], lv denied 96 N.Y.2d 756, 725 N.Y.S.2d 282, 748 N.E.2d 1078 [2001] ). Defendant identifies no authority to support his current assertion that the police questioned him in violation of his indelible right to counsel, and the premise underlying his attempt to distinguish Heller and its progeny has been explicitly rejected by the Court of Appeals (see People v. Colwell, 65 N.Y.2d 883, 885, 493 N.Y.S.2d 298, 482 N.E.2d 1214 [1985] ; see also People v. Robles, 72 N.Y.2d 689, 695, 536 N.Y.S.2d 401, 533 N.E.2d 240 [1988] ; People v. Marshall, 98 A.D.2d 452, 461–463, 471 N.Y.S.2d 599 [2d Dept. 1984] ). Thus, because the governing law was unfavorable to a suppression motion on the precise theory upon which defendant now relies, defense counsel's failure to file such a motion cannot be deemed ineffective (see People v. Brunner, 16 N.Y.3d 820, 821, 922 N.Y.S.2d 248, 947 N.E.2d 139 [2011] ; People v. Bradford, 118 A.D.3d 1254, 1255–1256, 987 N.Y.S.2d 727 [4th Dept. 2014], lv denied 24 N.Y.3d 1082, 1 N.Y.S.3d 9, 25 N.E.3d 346 [2014] ). We note that defendant does not contend that defense counsel was ineffective for failing to seek suppression on the ground that a new right to counsel attached indelibly upon the filing of a conditional discharge violation petition against him (see generally People v. Hilliard, 20 A.D.3d 674, 676–678, 799 N.Y.S.2d 301 [3d Dept. 2005], lv denied 5 N.Y.3d 853, 806 N.Y.S.2d 173, 840 N.E.2d 142 [2005] ).