Opinion
540 KA 19-00981
06-17-2021
The PEOPLE of the State of New York, Respondent, v. Colton PRICE, Defendant-Appellant.
CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT. MARK S. SINKIEWICZ, DISTRICT ATTORNEY, WATERLOO (MELISSA K. SWARTZ OF COUNSEL), FOR RESPONDENT.
CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT.
MARK S. SINKIEWICZ, DISTRICT ATTORNEY, WATERLOO (MELISSA K. SWARTZ OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of sexual abuse in the first degree ( Penal Law § 130.65 [1] ), arising from allegations that defendant and his brother engaged in sexual misconduct with the victim. Defendant contends that his waiver of indictment was jurisdictionally defective on the ground that County Court (Bender, J.), while acting in its capacity as the local criminal court, violated CPL 195.10 by failing to properly hold defendant for action of a grand jury. Although we agree with defendant that this particular contention need not be preserved for our review (see People v. Boston , 75 N.Y.2d 585, 589 n., 555 N.Y.S.2d 27, 554 N.E.2d 64 [1990] ; cf. People v. Thomas , 34 N.Y.3d 545, 568, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ), is not forfeited by his guilty plea (see People v. Anderson , 149 A.D.3d 766, 766-767, 50 N.Y.S.3d 552 [2d Dept. 2017] ), and would not be precluded by a valid waiver of the right to appeal (see People v. Waid , 26 A.D.3d 734, 734-735, 809 N.Y.S.2d 330 [4th Dept. 2006], lv denied 6 N.Y.3d 839, 814 N.Y.S.2d 87, 847 N.E.2d 384 [2006] ), we nevertheless conclude that it lacks merit. CPL 195.10 (1) provides that "[a] defendant may waive indictment and consent to be prosecuted by superior court information when," among other requirements, "a local criminal court has held the defendant for the action of a grand jury" ( CPL 195.10 [1] [a] ). "Being so ‘held’ for the action of a [g]rand [j]ury involves the filing of a felony complaint on which defendant has been arraigned and a finding after a preliminary hearing (unless waived by defendant) that reasonable cause exists to believe that defendant committed a felony" ( People v. Barber , 280 A.D.2d 691, 692, 720 N.Y.S.2d 223 [3d Dept. 2001], lv denied 96 N.Y.2d 825, 729 N.Y.S.2d 445, 754 N.E.2d 205 [2001] ; see People v. D'Amico , 76 N.Y.2d 877, 879, 561 N.Y.S.2d 411, 562 N.E.2d 488 [1990] ).
Here, despite the absence of an order issued by the court, the record establishes that defendant was properly held for the action of a grand jury inasmuch as defendant acknowledged that he received the felony complaint upon which he was arraigned and waived his right to a preliminary hearing (see People v. Gassner , 193 A.D.3d 1182, 1184, 147 N.Y.S.3d 191 [3d Dept. 2021] ; Anderson , 149 A.D.3d at 767, 50 N.Y.S.3d 552 ), and the court immediately transferred over the case from its capacity as the local criminal court to its capacity as County Court (see People v. Fox , 158 A.D.3d 591, 591, 71 N.Y.S.3d 60 [1st Dept. 2018], lv denied 31 N.Y.3d 1081, 79 N.Y.S.3d 103, 103 N.E.3d 1250 [2018] ; People v. Cicio , 157 A.D.3d 651, 651, 67 N.Y.S.3d 468 [1st Dept. 2018], lv denied 31 N.Y.3d 982, 77 N.Y.S.3d 660, 102 N.E.3d 437 [2018] ; People v. Davenport , 106 A.D.3d 1197, 1197, 964 N.Y.S.2d 759 [3d Dept. 2013], lv denied 21 N.Y.3d 1073, 974 N.Y.S.2d 322, 997 N.E.2d 147 [2013] ). We also note that defendant signed in open court the waiver of indictment in which he consented to being prosecuted by superior court information (SCI), and the court's order approving the waiver stated that the waiver complied with the provisions of CPL 195.10 (see Gassner , 193 A.D.3d at 1184, 147 N.Y.S.3d 191 ; People v. Simmons , 110 A.D.3d 1371, 1372, 973 N.Y.S.2d 865 [3d Dept. 2013] ; Barber , 280 A.D.2d at 693, 720 N.Y.S.2d 223 ). We thus reject defendant's contention that the waiver of indictment was jurisdictionally defective.
Contrary to defendant's contention, his further challenge to the SCI was forfeited by his guilty plea (see generally Thomas , 34 N.Y.3d at 569, 122 N.Y.S.3d 226, 144 N.E.3d 970 ) and, in any event, is not preserved for our review inasmuch as "[a] purported error or insufficiency in the facts of an indictment or information to which a plea is taken does not constitute a nonwaivable jurisdictional defect and must be raised in the trial court" ( People v. Milton , 21 N.Y.3d 133, 137 n, 967 N.Y.S.2d 680, 989 N.E.2d 962 [2013] ; see generally People v. Iannone , 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656 [1978] ).
Defendant next contends that County Court (Healy, A.J.) abused its discretion in denying his motion to withdraw his guilty plea following a hearing. Although defendant's contention would survive even a valid waiver of the right to appeal (see Thomas , 34 N.Y.3d at 558, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Carr , 147 A.D.3d 1506, 1506, 47 N.Y.S.3d 561 [4th Dept. 2017], lv denied 29 N.Y.3d 1030, 62 N.Y.S.3d 298, 84 N.E.3d 970 [2017] ), we nonetheless conclude that it lacks merit for the reasons that follow.
Defendant asserts in particular that his plea was entered under duress because the plea bargain was linked to that offered to his brother, thereby making it difficult to independently decide whether to accept the plea, and because he was pressured into accepting that bargain by his former attorney. It is well established that, "so long as the plea agreement is voluntarily, knowingly and intelligently made, the fact that it is linked to the prosecutor's acceptance of a plea bargain favorable to a third person does not, by itself, make [a] defendant's plea illegal" ( People v. Fiumefreddo , 82 N.Y.2d 536, 544, 605 N.Y.S.2d 671, 626 N.E.2d 646 [1993] ). "[W]hile a connected plea entailing benefit to a third person can place pressure on a defendant, the ‘inclusion of a third-party benefit in a plea bargain is simply one factor for a [trial] court to weigh in making the overall determination whether the plea is voluntarily entered’ " ( id. at 545, 605 N.Y.S.2d 671, 626 N.E.2d 646 ; see People v. Schrecengost , 273 A.D.2d 937, 938, 710 N.Y.S.2d 226 [4th Dept. 2000], lv denied 95 N.Y.2d 938, 721 N.Y.S.2d 614, 744 N.E.2d 150 [2000] ).
Here, the hearing testimony of the former attorneys for defendant and his brother belies defendant's claim that he was coerced and had insufficient time to discuss the linked plea bargain during a meeting prior to the plea proceeding, and we see no basis to disturb the court's determination to credit the testimony of the former attorneys over that of defendant (see People v. Henderson , 169 A.D.3d 1521, 1522, 93 N.Y.S.3d 785 [4th Dept. 2019], lv denied 33 N.Y.3d 977, 101 N.Y.S.3d 252, 124 N.E.3d 741 [2019] ; People v. Stephens , 6 A.D.3d 1123, 1124, 775 N.Y.S.2d 684 [4th Dept. 2004], lv denied 3 N.Y.3d 663, 782 N.Y.S.2d 705, 816 N.E.2d 578 [2004], reconsideration denied 3 N.Y.3d 682, 784 N.Y.S.2d 20, 817 N.E.2d 838 [2004] ; see generally People v. Santos , 244 A.D.2d 897, 897, 665 N.Y.S.2d 208 [4th Dept. 1997] ). With respect to the advice provided during the meeting, "the fact ‘[t]hat [former defense] counsel made defendant aware of his sentencing exposure cannot be a basis for finding coercion’ " ( People v. Humber , 35 A.D.3d 1209, 1209, 825 N.Y.S.2d 892 [4th Dept. 2006], lv denied 8 N.Y.3d 923, 834 N.Y.S.2d 513, 866 N.E.2d 459 [2007] ; see People v. Days , 150 A.D.3d 1622, 1624, 55 N.Y.S.3d 544 [4th Dept. 2017], lv denied 29 N.Y.3d 1125, 64 N.Y.S.3d 675, 86 N.E.3d 567 [2017] ). Likewise, "[former] defense counsel's advice that [defendant] was unlikely to prevail at trial and that he would likely receive a harsher sentence if convicted after trial ... does not constitute coercion" ( People v. Griffin , 120 A.D.3d 1569, 1570, 993 N.Y.S.2d 404 [4th Dept. 2014], lv denied 24 N.Y.3d 1084, 1 N.Y.S.3d 11, 25 N.E.3d 348 [2014] ; see People v. Schluter , 136 A.D.3d 1363, 1364, 24 N.Y.S.3d 478 [4th Dept. 2016], lv denied 27 N.Y.3d 1138, 39 N.Y.S.3d 121, 61 N.E.3d 520 [2016] ). Upon weighing the totality of the circumstances, we conclude that the record establishes that defendant's plea was entered voluntarily, knowingly and intelligently (see Fiumefreddo , 82 N.Y.2d at 545-547, 605 N.Y.S.2d 671, 626 N.E.2d 646 ; Schrecengost , 273 A.D.2d at 938, 710 N.Y.S.2d 226 ; Santos , 244 A.D.2d at 897, 665 N.Y.S.2d 208 ).