Opinion
12-10-2015
THE PEOPLE of the State of New York, Respondent, v. Brandon GRIFFIN, Appellant.
Theodore J. Stein, Woodstock, for appellant, and appellant pro se. D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Theodore J. Stein, Woodstock, for appellant, and appellant pro se.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Before: McCARTHY, J.P., EGAN JR., LYNCH and DEVINE, JJ.
EGAN JR., J.Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered April 17, 2013, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.
Defendant was indicted and charged with one count of criminal possession of a controlled substance in the third degree. The charge stemmed from a controlled buy that occurred in the City of Kingston, Ulster County on September 11, 2012, during the course of which defendant allegedly was found to be in possession of 110 glassine envelopes of a substance that field tested positive for heroin. When the parties appeared before County Court in February 2013 for a suppression hearing and jury selection, defense counsel indicated that, despite having rejected prior offers, defendant was interested in accepting a plea. Following an extensive colloquy with County Court, defendant pleaded guilty to the sole count of the indictment and waived his right to appeal in exchange for a sentence of nine years in prison followed by three years of postrelease supervision. Defendant's subsequent pro se motion to withdraw his plea was denied, and County Court thereafter sentenced defendant in accordance with the terms of the plea agreement. Defendant now appeals, contending that the waiver of his right to appeal was not knowing, intelligent and voluntary and that he was denied the effective assistance of counsel.
Although the cover sheet of the indictment contains references to crimes with which defendant was not charged and County Court mistakenly inquired as to whether defendant was pleading guilty to criminal possession of a controlled substance in the first degree, it is otherwise clear from the record that defendant was charged with and pleaded guilty to one count of criminal possession of a controlled substance in the third degree.
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We affirm. "When an appeal waiver is challenged, the operative question is whether the trial court has confirmed on the record that the defendant understands the terms and conditions of his or her plea agreement" ( People v. Pope, 129 A.D.3d 1389, 1389, 14 N.Y.S.3d 512 [2015] [citations omitted] ). To that end, the court is "not obliged to engage in any particular litany or catechism in satisfying itself that a defendant has entered a knowing, intelligent and voluntary appeal waiver" (People v. Smith, 121 A.D.3d 1131, 1131, 993 N.Y.S.2d 392 [2014], lv. denied 24 N.Y.3d 1123, 3 N.Y.S.3d 764, 27 N.E.3d 478 [2015] [internal quotation marks and citations omitted] ). As long as the record reflects "that there was some judicial examination of the waiver itself" (People v. McCaskill, 76 A.D.3d 751, 752, 905 N.Y.S.2d 721 [2010] [internal quotation marks and citation omitted] ) and that the defendant had "a full appreciation of the consequences of such waiver" (People v. Spellicy, 123 A.D.3d 1228, 1229, 998 N.Y.S.2d 519 [2014], lv. denied 25 N.Y.3d 992, 10 N.Y.S.3d 535, 32 N.E.3d 972 [2015] [internal quotation marks and citations omitted] ), the challenged waiver may be upheld.
Here, although County Court should have more clearly distinguished defendant's right to appeal from the remainder of the rights that defendant forfeited upon pleading guilty, the record nonetheless reflects that County Court reviewed the waiver with defendant and obtained the required assurances that defendant fully appreciated the appellate rights that he was waiving (see People v. Waite, 120 A.D.3d 1446, 1447, 994 N.Y.S.2d 201 [2014] ; People v. Sylvan, 107 A.D.3d 1044, 1045, 968 N.Y.S.2d 628 [2013], lv. denied 22 N.Y.3d 1141, 983 N.Y.S.2d 500, 6 N.E.3d 619 [2014] ). Notably, during the course of the colloquy between County Court and defendant, defendant—evidencing his knowledge of the criminal justice system—inquired as to whether the waiver encompassed only those issues that could be raised upon a "direct appeal" or extended to CPL article 440 motions and habeas corpus proceedings as well. Following additional discussions with County Court, defendant indicated that he had no further questions and, when County Court urged defendant to pose any inquiries that he may have to counsel prior to proceeding, defendant replied, "I'm fine." Defendant was presented with a copy of the detailed written waiver of appeal, which was amended to address defendant's concern regarding his right to pursue certain postplea applications, and was questioned as to his understanding thereof. Again, defendant indicated that he understood everything that had been discussed. Defendant then executed the written waiver—the text of which expressly delineated the separate and distinct nature of defendant's appellate rights and confirmed that defendant had been afforded "ample opportunity to discuss such rights and [the] waiver with [his] attorney and to address and ask questions of [County] Court regarding them." Under these circumstances, we are satisfied that the record reflects that defendant's waiver of his right to appeal his conviction and sentence was knowing, intelligent and voluntary (see People v. Tole, 119 A.D.3d 982, 982–983, 989 N.Y.S.2d 185 [2014] ; People v. Henion, 110 A.D.3d 1349, 1350, 973 N.Y.S.2d 857 [2013], lv. denied 22 N.Y.3d 1088, 981 N.Y.S.2d 674, 4 N.E.3d 976 [2014] ; People v. White, 96 A.D.3d 1299, 1299–1300, 946 N.Y.S.2d 717 [2012], lv. denied 19 N.Y.3d 1029, 953 N.Y.S.2d 563, 978 N.E.2d 115 [2012] ; compare People v. Pope, 129 A.D.3d at 1389–1390, 14 N.Y.S.3d 512 ; People v. Ritter, 124 A.D.3d 1133, 1134, 2 N.Y.S.3d 693 [2015] ; People v. Bouton, 107 A.D.3d 1035, 1036, 967 N.Y.S.2d 200 [2013], lv. denied 21 N.Y.3d 1072, 974 N.Y.S.2d 321, 997 N.E.2d 146 [2013] ).
As to defendant's claim of ineffective assistance of counsel, certain of the arguments raised by defendant in this regard—including his assertion that defense counsel failed to conduct an adequate pretrial investigation (see People v. Bahr, 96 A.D.3d 1165, 1166, 946 N.Y.S.2d 675 [2012], lv. denied 19 N.Y.3d 1024, 953 N.Y.S.2d 557, 978 N.E.2d 109 [2012] ), seek out and interview alibi witnesses (see People v. Varmette, 70 A.D.3d 1167, 1172, 895 N.Y.S.2d 239 [2010], lv. denied 14 N.Y.3d 845, 901 N.Y.S.2d 152, 927 N.E.2d 573 [2010] ), pursue certain discovery demands and/or available defenses (see People v. Davis, 114 A.D.3d 1003, 1003, 114 A.D.3d 1003, 979 N.Y.S.2d 878 [2014], lv. denied 23 N.Y.3d 962, 988 N.Y.S.2d 569, 11 N.E.3d 719 [2014] ), seek sanctions for alleged prosecutorial misconduct (cf. People v. Jones, 101 A.D.3d 1482, 1483, 956 N.Y.S.2d 703 [2012], lv. denied 21 N.Y.3d 1017, 971 N.Y.S.2d 499, 994 N.E.2d 395 [2013] ) and explain the collateral consequences of his plea (cf. People v. Balbuena, 123 A.D.3d 1384, 1386, 999 N.Y.S.2d 600 [2014] )—involve matters outside of the record and, as such, are more properly the subject of a CPL article 440 motion. To the extent that the balance of defendant's ineffective assistance of counsel claim impacts upon the voluntariness of his plea, such claim survives the valid appeal waiver but must be preserved by an appropriate postallocution motion (see e.g. People v. Moses, 110 A.D.3d 1118, 1118, 972 N.Y.S.2d 363 [2013] ). In this regard, the record reflects that defendant made a pro se motion to withdraw his plea claiming, insofar as is relevant here, that counsel's performance was deficient in that she conspired with the People to procure an "excessive sentence," failed to adopt four of defendant's five pro se motions and neglected to advocate for and secure a favorable plea deal. Accordingly, the additional grounds now advanced by defendant in his pro se brief—including his assertions that counsel failed to bring certain pretrial motions, neglected to correct inaccurate information relative to defendant's criminal history and failed to object to County Court's alleged bias—are unpreserved for our review, as defendant did not advance these specific grounds in his motion to withdraw his plea (see People v. Delarosa, 104 A.D.3d 956, 956, 960 N.Y.S.2d 915 [2013], lv. denied 21 N.Y.3d 1003, 971 N.Y.S.2d 255, 993 N.E.2d 1277 [2013] ; People v. Escalante, 16 A.D.3d 984, 984–985, 792 N.Y.S.2d 253 [2005], lvs. denied 5 N.Y.3d 788, 801 N.Y.S.2d 809, 835 N.E.2d 669 [2005], 5 N.Y.3d 793, 801 N.Y.S.2d 814, 835 N.E.2d 674 [2005] ).
In any event, "[d]efense counsel was not required to support defendant's various pro se motions" (People v. Blackwell, 129 A.D.3d 1690, 1691, 12 N.Y.S.3d 425 [2015], lv. denied 26 N.Y.3d 926, 17 N.Y.S.3d 89, 38 N.E.3d 835 [2015] ; see People v. Jones, 261 A.D.2d 920, 920, 690 N.Y.S.2d 366 [1999], lv. denied 93 N.Y.2d 972, 695 N.Y.S.2d 58, 716 N.E.2d 1103 [1999] ; see also People v. Adams, 66 A.D.3d 1355, 1356, 886 N.Y.S.2d 525 [2009], lv. denied 13 N.Y.3d 858, 891 N.Y.S.2d 692, 920 N.E.2d 97 [2009] ), and "the failure to make a particular pretrial motion does not—per se—constitute ineffective assistance of counsel" (People v. Alnutt, 107 A.D.3d 1139, 1145, 968 N.Y.S.2d 634 [2013], lv. denied 22 N.Y.3d 1136, 983 N.Y.S.2d 495, 6 N.E.3d 614 [2014] ; see People v. Carbone, 101 A.D.3d 1232, 1235, 956 N.Y.S.2d 221 [2012] ). Additionally, counsel did endeavor to clarify and correct certain information contained in the presentence investigation report (see People v. Orengo, 286 A.D.2d 344, 344–345, 728 N.Y.S.2d 775 [2001], affd. 97 N.Y.2d 739, 742 N.Y.S.2d 598, 769 N.E.2d 344 [2002] ) and, contrary to defendant's assertion, the record falls far short of establishing any colorable claim of judicial bias, thereby obviating any need for counsel to take corrective action in this regard. The record is similarly bereft of any evidence of a "conspiracy" to subject defendant to an "excessive" sentence. In short, inasmuch as defendant "receive[d] an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel" (People v. Vonneida, 130 A.D.3d 1322, 1322, 13 N.Y.S.3d 708 [2015] [internal quotation marks and citations omitted]; accord People v. Jenkins, 130 A.D.3d 1091, 1091, 12 N.Y.S.3d 384 [2015] ), we are satisfied that defendant was afforded meaningful representation.
Finally, defendant's challenge to the perceived severity of his sentence is precluded by his valid waiver of the right to appeal (see People v. Donah, 127 A.D.3d 1413, 1413, 5 N.Y.S.3d 736 [2015] ), and his assertion that County Court should have assigned substitute counsel to represent him is unpreserved for our review. Defendant's remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit.
ORDERED that the judgment is affirmed.
McCARTHY, J.P., LYNCH and DEVINE, JJ., concur.