Opinion
Nos. 110745 113254
12-01-2022
The People of the State of New York, Respondent, v. Kevin Gonyea, Appellant.
Marlene O. Tuczinski, Chatham, for appellant. J. Anthony Jordan, District Attorney, Fort Edward (Taylor Fitzsimmons of counsel), for respondent.
Calendar Date:October 12, 2022
Marlene O. Tuczinski, Chatham, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Taylor Fitzsimmons of counsel), for respondent.
Before: Lynch, J.P., Aarons, Reynolds Fitzgerald, Fisher and McShan, JJ.
McShan, J.
Appeals (1) from a judgment of the County Court of Washington County (Kelly S. McKeighan, J.), rendered August 10, 2018, convicting defendant upon his plea of guilty of the crimes of murder in the second degree and offering a false instrument for filing in the first degree, and (2) by permission, from an order of said court, entered December 9, 2021, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
In July 2017, the Washington County Sheriff's Office responded to a call reporting the unattended death of a 95-year-old resident (hereinafter the victim) of the Town of Fort Ann, Washington County. At the time of her death, the victim resided with defendant and his wife, who had provided care for the victim since moving in with the victim and her late husband in 2016. Following their initial investigation, law enforcement requested an autopsy on the victim, which revealed the need to further investigate the victim's cause of death. Accordingly, law enforcement questioned defendant and his wife at the Washington County Sheriff's Office, during which the wife informed investigators that defendant had told her that he had strangled the victim with a towel. The wife later led the officers to the location where she had hidden the towel at defendant's behest.
Thereafter, defendant and the wife were jointly charged by a 15-count indictment which, in relevant part, charged defendant with the crimes of murder in the second degree (count 1), tampering with physical evidence (count 2), welfare fraud (count 6) and offering a false instrument for filing in the first degree (counts 8, 10, 12 and 14). Defendant and the People eventually came to a plea agreement that required defendant to provide sworn testimony inculpating other family members in the victim's murder. In exchange, defendant would plead guilty to the crimes of murder in the second degree and one count of offering a false instrument for filing in the first degree and waive his right to appeal in exchange for a prison sentence of 15 years to life for murder in the second degree and a lesser concurrent prison term for the other crime. Defendant thereafter provided the agreed-upon sworn testimony, during which he admitted to killing the victim but blamed his action on the influence of various family members. Two days after providing the sworn testimony, defendant pleaded guilty, waived his right to appeal and was sentenced in accordance with the plea agreement. Subsequently, defendant moved, pursuant to CPL 440.10, to vacate the judgment based on the ineffective assistance of counsel, and County Court denied the motion without a hearing. Defendant appeals from the judgment of conviction and, with this Court's permission, from the order denying his postconviction motion.
Initially, defendant contends that the evidence before the grand jury concerning count 1 of the indictment was primarily based upon inadmissible hearsay and that the remaining evidence presented failed to support the People's theory of guilt. These arguments, however, are directed toward the sufficiency of the grand jury evidence and are therefore precluded by his guilty plea (see People v Torres, 199 A.D.3d 1076, 1077 [3d Dept 2021], lv denied 37 N.Y.3d 1165 [2022]; People v Mercado, 188 A.D.3d 1418, 1419 [3d Dept 2020]). Further, while defendant's contention that his guilty plea was involuntary based upon the ineffective assistance of counsel survives his plea and unchallenged appeal waiver, it is nevertheless unpreserved in the absence of an appropriate postallocution motion (see CPL 220.60 [3]; People v Devins, 206 A.D.3d 1365, 1366-1367 [3d Dept 2022]; People v Botts, 191 A.D.3d 1044, 1045 [3d Dept 2021], lv denied 36 N.Y.3d 1095 [2021]).
Turning to defendant's postconviction motion, the People concede, and we agree, that an amendment to CPL 440.10 made effective prior to County Court's determination on the motion required it to consider the entirety of defendant's claims directed toward the ineffective assistance of counsel, regardless of whether such claims were record based or concerned matters outside of the record (see L 2021, ch 501). Nonetheless, although County Court erred to the extent that it may have based its denial of defendant's motion on CPL 440.10 (2) (b) and (c), it also determined that defendant's nonrecord-based claims did not warrant a hearing, and otherwise addressed the merits of his record-based arguments as alternative grounds for dismissal. Accordingly, we will address the entirety of defendant's claims in the context of his appeal from the denial of his CPL 440.10 motion (see People v Clark, ___ A.D.3d ___, ___, 175 N.Y.S.3d 751, ___, 2022 NY Slip Op 05563, *2 [3d Dept 2022]; People v White-Span, 182 A.D.3d 909, 914 [3d Dept 2020], lv denied 35 N.Y.3d 1071 [2020]).
The October 2021 amendment to CPL 440.10 removed the procedural bars to collateral review of ineffective assistance of counsel claims in order to "encourage these claims to be brought in the preferable forum in the first instance" (Assembly Sponsor's Mem in Support, 2021 McKinney's Session Laws of NY at 2621). In other words, the Legislature eliminated the need for defendants to distinguish whether potential ineffective assistance of counsel claims are record based or whether they implicate matters outside of the record in determining how and when to raise such claims, and has instead stated a clear preference that all such claims be first raised on collateral review.
As to the merits of defendant's contentions, "[t]o establish a claim of ineffective assistance of counsel, a defendant is required to demonstrate that he or she was not provided meaningful representation and that there is an absence of strategic or other legitimate explanations for counsel's allegedly deficient conduct" (People v Lafountain, 200 A.D.3d 1211, 1215-1216 [3d Dept 2021] [internal quotation marks and citations omitted], lv denied 38 N.Y.3d 951 [2022]; see People v Caban, 5 N.Y.3d 143, 152 [2005]). "In the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel" (People v Wright, 256 A.D.2d 643, 646 [3d Dept 1998] [internal quotation marks and citations omitted], lv denied 93 N.Y.2d 880 [1999]; accord People v See, 206 A.D.3d 1153, 1156 [3d Dept 2022]; People v Wood, 203 A.D.3d 1406, 1407 [3d Dept 2022], lv denied 38 N.Y.3d 1075 [2022]).
Defendant contends that his counsel's failure to pursue various pretrial hearings and to submit written arguments on his Huntley motion rendered his representation ineffective. We find such arguments are without merit, as defendant does not identify any specific incriminating statements that would have likely been suppressed, and counsel was not required to make motions that would ultimately prove futile (see People v Johnson, 201 A.D.3d 1208, 1208-1209 [3d Dept 2022]; People v Barzee, 190 A.D.3d 1016, 1021 [3d Dept 2021], lv denied 36 N.Y.3d 1094 [2021]; People v Burns, 122 A.D.3d 1435, 1436-1437 [4th Dept 2014], lv denied 26 N.Y.3d 927 [2015]). Further, the record reveals that the Huntley motion was returnable on the same day that defendant ultimately pleaded guilty, obviating the need to submit written arguments. To this end, we find that defendant's CPL 440.10 motion and its exhibits "fail[] to establish that counsel lacked a legitimate or strategic reason for forgoing [the] motions," inasmuch as such actions were clearly undertaken in the context of "negotiating a very favorable plea agreement in the face of strong evidence of guilt and lengthy sentencing exposure" (People v Fish, 208 A.D.3d 1546, 1549 [3d Dept 2022]; see People v Wright, 88 A.D.3d 1154, 1156 [3d Dept 2011], lv denied 18 N.Y.3d 863 [2011]; compare People v Carnevale, 101 A.D.3d 1375, 1380-1381 [3d Dept 2012]).
We also reject defendant's contention that counsel failed to investigate and confer with him on several potential defenses including a potential extreme emotional disturbance defense. These claims are supported by defendant's affidavit alongside the affirmation of appellate counsel, which we find are self-serving, conclusory and contradictory to defendant's statements at his plea proceeding confirming that he had adequately discussed potential trial strategies and the strengths and weaknesses of his case with counsel and that he was satisfied with his performance (see People v Fish, 208 A.D.3d at 1549; People v Marte-Feliz, 192 A.D.3d 1397, 1399 [3d Dept 2021]; People v Passino, 25 A.D.3d 817, 818-819 [3d Dept 2006], lv denied 6 N.Y.3d 816 [2006]). Further, our review of the record reveals that any potential extreme emotional disturbance defense had little chance of success in light of the evidence of defendant's conduct and statements before and after the victim's death (see People v Roche, 98 N.Y.2d 70, 77 [2002]; People v Schumaker, 136 A.D.3d 1369, 1372 [4th Dept 2016], lv denied 27 N.Y.3d 1075 [2016]; People v Coello, 129 A.D.3d 442, 443 [1st Dept 2015], lv denied 26 N.Y.3d 927 [2015]). Accordingly, we find that the decision to forgo that defense in favor of pursuing a favorable plea does not establish that the representation was deficient (see People v Barrera, 129 A.D.3d 487, 487 [1st Dept 2015], lv denied 26 N.Y.3d 926 [2015]; People v Davis, 265 A.D.2d 260, 261 [1st Dept 1999], lv denied 94 N.Y.2d 879 [2000]; People v Kittle, 154 A.D.2d 782, 783 [3d Dept 1989], lv denied 75 N.Y.2d 814 [1990]).
Finally, while counsel's decision to allow defendant to provide a sworn statement prior to his plea allocution may not have been the ideal approach, we cannot say that the decision was bereft of any discernable strategy on his part (see People v Smith, 59 N.Y.2d 156, 166-167 [1983]; People v Rosenblum, 218 A.D.2d 823, 823 [2d Dept 1995]; People v LeGeros, 162 A.D.2d 475, 475-476 [2d Dept 1990], lv denied 76 N.Y.2d 860 [1990]). The record reveals that, in the face of defendant's significant exposure to a lengthy sentence and substantial evidence of his guilt, counsel successfully pursued an advantageous plea agreement on his behalf, and defendant ultimately received all of the intended benefit (see People v Agueda, 202 A.D.3d 1153, 1156 [3d Dept 2022], lv denied 38 N.Y.3d 1031 [2022]; People v Ballard, 200 A.D.3d 1476, 1478 [3d Dept 2021], lv denied 38 N.Y.3d 925 [2022]). Accordingly, we find no basis to second guess defense counsel's strategic decision to allow defendant to provide the statement in pursuit of a plea, which eventually proved advantageous (see People v Benevento, 91 N.Y.2d 708, 713 [1998]; People v Jackson, 128 A.D.3d 1279, 1280 [3d Dept 2015], lv denied 26 N.Y.3d 930 [2015]; People v Wares, 124 A.D.3d 1079, 1081 [3d Dept 2015], lv denied 25 N.Y.3d 993 [2015]). Considering the sum of defendant's contentions in the context of "counsel's representation in its totality," we cannot say that this decision or any other, cumulatively or in isolation, deprived defendant of meaningful representation (People v Garcia, 203 A.D.3d 1228, 1231 [3d Dept 2022], lv denied 38 N.Y.3d 1032 [2022]). In light of the foregoing, we find that defendant's submissions failed to establish the need for a hearing on his CPL 440.10 motion (see People v Clark, 2022 NY Slip Op 05563, *3; People v Guynup, 159 A.D.3d 1223, 1225 [3d Dept 2018], lv denied 31 N.Y.3d 1082 [2018]).
To the extent that defendant's remaining claims are not addressed herein, they have been considered and found to be without merit.
Lynch, J.P., Aarons, Reynolds Fitzgerald and Fisher, JJ., concur.
ORDERED that the judgment and the order are affirmed.