Opinion
02-09-2017
The PEOPLE of the State of New York, Respondent, v. Anna GARROW, Appellant.
Hug Law, PLLC, Albany (Matthew C. Hug of counsel), for appellant. J. Anthony Jordan, District Attorney, Ford Edward (Devin Anderson of counsel), for respondent.
Hug Law, PLLC, Albany (Matthew C. Hug of counsel), for appellant.
J. Anthony Jordan, District Attorney, Ford Edward (Devin Anderson of counsel), for respondent.
Before: GARRY, J.P., ROSE, DEVINE, CLARK and MULVEY, JJ.
GARRY, J.P.Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered April 4, 2014, convicting defendant upon her plea of guilty of the crime of criminal possession of a controlled substance in the third degree.
In full satisfaction of a four-count indictment, defendant pleaded guilty to one count of criminal possession of a controlled substance in the third degree and waived her right to appeal. Pursuant to the terms of the plea agreement, defendant was promised a sentence of two years followed by two years of postrelease supervision, upon the conditions that, among other things, she cooperate with the People in their prosecution of her codefendants, which included testifying truthfully and in conformity with her statements previously made to the prosecution. County Court advised defendant that, if she failed to comply with such conditions, the court would not be bound by the sentencing agreement and could impose a term of imprisonment up to nine years. At the time of sentencing, County Court found that defendant had violated the conditions of the plea agreement and, as a result, imposed an enhanced sentence of nine years in prison, to be followed by two years of postrelease supervision. Defendant now appeals.
We affirm. Initially, we reject defendant's challenge to the validity of her appeal waiver. After discussing the trial-related rights automatically forfeited by defendant's guilty plea, County Court separately addressed the waiver of appeal, explaining that it was a condition of the plea agreement, without lumping it with those trial-related rights (see People v. Toledo, 144 A.D.3d 1332, 1332–1333, 40 N.Y.S.3d 680 [2016] ; People v. Forget, 136 A.D.3d 1115, 1116, 24 N.Y.S.3d 793 [2016], lv. denied 28 N.Y.3d 929, 40 N.Y.S.3d 357, 63 N.E.3d 77 [2016] ; People v. Fishel, 128 A.D.3d 15, 17, 6 N.Y.S.3d 312 [2015] ). Defendant affirmed that she understood the nature of the waiver of her right to appeal and then executed a detailed written waiver after reviewing it with counsel, confirmed that she had discussed the consequences of the waiver with counsel and affirmed that she was voluntarily waiving the right (see People v. Toledo, 144 A.D.3d at 1333, 40 N.Y.S.3d 680; People v. Tole, 119 A.D.3d 982, 983, 989 N.Y.S.2d 185 [2014] ). Under these circumstances, we conclude that defendant's waiver of appeal was knowing, voluntary and intelligent (see People v. Woods, 141 A.D.3d 954, 955, 35 N.Y.S.3d 578 [2016], lv. denied 28 N.Y.3d 1076, 47 N.Y.S.3d 235, 69 N.E.3d 1031 [2016] ; People v. Green, 141 A.D.3d 837, 838, 35 N.Y.S.3d 766 [2016] ; People v. Clark, 135 A.D.3d 1239, 1239–1240, 23 N.Y.S.3d 481 [2016], lv. denied 27 N.Y.3d 995, 38 N.Y.S.3d 105, 59 N.E.3d 1217 [2016] ).
Defendant's contention that County Court erred in imposing an enhanced sentence, although not foreclosed by her valid waiver of appeal, is unpreserved for our review as she failed to object to the enhanced sentence during sentencing and never moved to withdraw her plea (see People v. Bennett, 143 A.D.3d 1008, 1009, 38 N.Y.S.3d 290 [2016] ; People v. Rushlow, 137 A.D.3d 1482, 1483, 28 N.Y.S.3d 476 [2016] ). In any event, County Court's imposition of the enhanced sentence was justified, as defendant—despite having been explicitly advised of the conditions of the plea agreement and the consequences for noncompliance—violated the conditions by testifying falsely as to her prior interactions with her codefendant and providing an account of her criminal conduct that conflicted with what she had stated to the People (see People v. Bennett, 143 A.D.3d at 1009, 38 N.Y.S.3d 290; People v. Miller, 117 A.D.3d 1237, 1238, 986 N.Y.S.2d 255 [2014], lv. denied 24 N.Y.3d 1086, 1 N.Y.S.3d 13, 25 N.E.3d 350 [2014] ; People v. Smith, 100 A.D.3d 1102, 1103, 953 N.Y.S.2d 377 [2012] ; People v. Coffey, 77 A.D.3d 1202, 1203–1204, 910 N.Y.S.2d 206 [2010], lv. denied 18 N.Y.3d 882, 939 N.Y.S.2d 752, 963 N.E.2d 129 [2012] ).
Defendant's ineffective assistance of counsel claim, although expressly preserved by the written appeal waiver, lacks merit. Defendant asserts that her trial counsel failed to request an evidentiary hearing on the issue of her compliance with the cooperation agreement, challenge the People's position that she violated the agreement or move to withdraw her guilty plea. However, given that County Court conducted a Sirois hearing on defendant's unavailability to testify, during which sufficient evidence of defendant's breach of the plea agreement was presented, "counsel cannot be faulted for failing to pursue a potentially futile endeavor" (People v. Delayo, 52 A.D.3d 1114, 1116, 860 N.Y.S.2d 321 [2008], lv. denied 11 N.Y.3d 787, 866 N.Y.S.2d 613, 896 N.E.2d 99 [2008] ; see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; People v. Russell, 143 A.D.3d 1188, 1190, 40 N.Y.S.3d 607 [2016] ). Further, when "viewed in totality and as of the time of the representation," defendant received meaningful representation, as counsel filed comprehensive pretrial motions and negotiated a favorable plea bargain (People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ; see People v. Harris, 139 A.D.3d 1244, 1246–1247, 34 N.Y.S.3d 179 [2016], lv. denied 28 N.Y.3d 930, 40 N.Y.S.3d 358, 63 N.E.3d 78 [2016] ; People v. Shurock, 83 A.D.3d 1342, 1344, 920 N.Y.S.2d 862 [2011] ; People v. Delayo, 52 A.D.3d at 1116, 860 N.Y.S.2d 321 ). Finally, as defendant was advised of the maximum potential sentence for violating the conditions of the plea agreement, her challenge to the severity of the enhanced sentence is foreclosed by her valid appeal waiver (see People v. Smith, 123 A.D.3d 1375, 1376, 999 N.Y.S.2d 276 [2014], lv. denied 26 N.Y.3d 935, 17 N.Y.S.3d 98, 38 N.E.3d 844 [2015] ; People v. Coffey, 77 A.D.3d at 1204, 910 N.Y.S.2d 206 ; compare People v. Long, 117 A.D.3d 1326, 1327, 986 N.Y.S.2d 670 [2014], lv. denied 24 N.Y.3d 1003, 997 N.Y.S.2d 121, 21 N.E.3d 573 [2014] ). Defendant's remaining contentions have been examined and found to be lacking in merit.
ORDERED that the judgment is affirmed.
ROSE, DEVINE, CLARK and MULVEY, JJ., concur.