Opinion
108338
10-04-2018
The PEOPLE of the State of New York, Respondent, v. Kenneth C. GRIFFIN, Appellant.
Elena Jaffe Tastensen, Saratoga Springs, for appellant. J. Anthony Jordan, District Attorney, Fort Edward (Joseph A. Frandino of counsel), for respondent.
Elena Jaffe Tastensen, Saratoga Springs, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Joseph A. Frandino of counsel), for respondent.
Before: Garry, P.J., McCarthy, Lynch, Aarons and Rumsey, JJ.
MEMORANDUM AND ORDER
Rumsey, J.
Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered January 28, 2016, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.
Defendant, an inmate, was charged in an indictment with promoting prison contraband in the first degree after he was found to have possessed an ice pick type weapon, which he used to stab another inmate. Pursuant to a plea agreement, defendant pleaded guilty to the reduced charge of attempted promoting prison contraband in the first degree. Consistent with the terms of the plea agreement, County Court sentenced defendant, as a second felony offender, to a prison term of 1 ½ to 3 years to run consecutively to his current sentence. Defendant appeals.
We affirm. As an initial matter, defendant's challenge to the voluntariness of his guilty plea and claim of ineffective assistance of counsel are matters ordinarily required to be preserved through an appropriate postallocution motion (see People v. Decker, 159 A.D.3d 1190, 1192, 73 N.Y.S.3d 274 [2018], lv denied 31 N.Y.3d 1116, 81 N.Y.S.3d 375, 106 N.E.3d 758 [2018] ; People v. Evans, 156 A.D.3d 1246, 1247, 68 N.Y.S.3d 564 [2017] ; People v. Darrell, 145 A.D.3d 1316, 1317, 45 N.Y.S.3d 223 [2016], lv denied 29 N.Y.3d 1125, 64 N.Y.S.3d 675, 86 N.E.3d 567 [2017] ). However, as defendant pleaded guilty and was sentenced in the same proceeding, he did not have the practical ability to make a postallocution motion and, therefore, his claims are reviewable (see People v. Sougou, 26 N.Y.3d 1052, 1054, 23 N.Y.S.3d 121, 44 N.E.3d 196 [2015] ; People v. Conceicao, 26 N.Y.3d 375, 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ; People v. Rosa, 135 A.D.3d 434, 434, 22 N.Y.S.3d 423 [2016], lv denied 27 N.Y.3d 968, 36 N.Y.S.3d 629, 56 N.E.3d 909 [2016] ). Nevertheless, we find that his claims are without merit.
The plea allocution reflects that defendant was advised by County Court that, by pleading guilty, he would forfeit certain trial-related rights, including "the privilege against self-incrimination and the rights to a jury trial and to be confronted by witnesses" ( People v. Tyrell, 22 N.Y.3d 359, 365, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013] ; citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 [1969] ; see People v. Proper, 133 A.D.3d 918, 919, 18 N.Y.S.3d 793 [2015] ), that the People had the obligation to prove his guilt beyond a reasonable doubt and that the jury's verdict had to be unanimous (see People v. Nunez, 56 A.D.3d 897, 898, 867 N.Y.S.2d 267 [2008], lv denied 11 N.Y.3d 928, 874 N.Y.S.2d 13, 902 N.E.2d 447 [2009] ; People v. Ivory, 53 A.D.3d 788, 789, 861 N.Y.S.2d 219 [2008] ). Defendant further indicated his understanding of the plea agreement and the plea proceedings and stated his desire to plead guilty instead of proceeding to trial where he could have raised defenses to the charges. In view of the foregoing, we find that defendant was adequately advised of the consequences of his plea and that he made a "knowing, voluntary and intelligent choice among alternative courses of action" ( People v. Conceicao, 26 N.Y.3d at 384, 23 N.Y.S.3d 124, 44 N.E.3d 199 ; see People v. Soto, 259 A.D.2d 904, 904, 686 N.Y.S.2d 897 [1999] ). Defendant's claim that his plea was not voluntary because he was denied the effective assistance of counsel is also belied by the record. Defendant indicated that he had sufficient time to speak to his attorney — with whom he had discussed the strengths and weaknesses of his case, trial strategies and suppression issues — and that he was satisfied with his attorney's representation (see People v. Beekman, 134 A.D.3d 1355, 1357, 22 N.Y.S.3d 619 [2015], lv denied 27 N.Y.3d 992, 38 N.Y.S.3d 102, 59 N.E.3d 1214 [2016] ; People v. Abdullah, 122 A.D.3d 958, 960, 995 N.Y.S.2d 413 [2014], lv denied 24 N.Y.3d 1218, 4 N.Y.S.3d 606, 28 N.E.3d 42 [2015] ). Moreover, inasmuch as the record reveals that defense counsel negotiated an advantageous plea on defendant's behalf, and nothing in the record casts doubt on counsel's apparent effectiveness, we find that defendant was afforded meaningful representation in connection with his guilty plea (see People v. Fatiu, 158 A.D.3d 890, 891, 71 N.Y.S.3d 182 [2018] ; People v. Brown, 154 A.D.3d 1004, 1006, 61 N.Y.S.3d 717 [2017], lv denied 30 N.Y.3d 1113, 77 N.Y.S.3d 338, 101 N.E.3d 979 [2018] ; People v. Khan, 139 A.D.3d 1261, 1264, 31 N.Y.S.3d 671 [2016], lvs denied 28 N.Y.3d 932, 934, 40 N.Y.S.3d 360, 362, 63 N.E.3d 80, 82 [2016]; People v. Burns, 133 A.D.3d 1045, 1047, 20 N.Y.S.3d 669 [2015], lv denied 27 N.Y.3d 1149, 39 N.Y.S.3d 383, 62 N.E.3d 123 [2016] ). Finally, as the balance of defendant's ineffective assistance of counsel claim involves matters outside of the record, it is more properly the subject of a CPL article 440 motion (see People v. Dutcher, 156 A.D.3d 1122, 1123, 67 N.Y.S.3d 354 [2017] ; People v. Lewis, 143 A.D.3d 1183, 1185, 40 N.Y.S.3d 605 [2016] ). Defendant's remaining contention has been considered and found to lack merit.
ORDERED that the judgment is affirmed.
Garry, P.J., McCarthy, Lynch and Aarons, JJ., concur.