Opinion
109627 110500
06-13-2019
The PEOPLE of the State of New York, Respondent, v. Zuri Ahmad THACKER, Appellant.
Donnial K. Hinds, Albany, for appellant. D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Donnial K. Hinds, Albany, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Clark, Mulvey and Pritzker, JJ.
MEMORANDUM AND ORDER
Garry, P.J. Defendant was charged by indictment with three counts of criminal sale of a controlled substance in the third degree stemming from three separate sales of heroin on October 24, 2016. He thereafter pleaded guilty to one count of criminal sale of a controlled substance in the third degree in satisfaction of all the charges and was required to waive his right to appeal. As part of the plea agreement, County Court agreed to cap the sentence at six years in prison, followed by three years of postrelease supervision, and subsequently imposed that sentence. Defendant moved to vacate the judgment of conviction pursuant to CPL 440.10, alleging that he had received ineffective assistance of counsel, among other things. County Court denied the motion. Defendant appeals from the judgment of conviction and, by permission, from the order denying his CPL 440.10 motion.
Defendant also concurrently moved to dismiss the indictment pursuant to CPL 210.20, which County Court denied as untimely in a separate decision and order (see CPL 255.20 ). This Court denied defendant's motion for permission to appeal from that order.
Initially, upon defendant's direct appeal, we find that his waiver of appeal was valid. County Court advised defendant that an appeal waiver was a condition of the plea agreement and carefully explained the waiver and the separate and distinct nature of his appellate rights from those automatically forfeited by his guilty plea (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Martinez, 166 A.D.3d 1376, 1377, 86 N.Y.S.3d 756 [2018], lv denied 32 N.Y.3d 1207, 99 N.Y.S.3d 208, 122 N.E.3d 1121 [2019] ). Defendant then executed a written appeal waiver in court, after the court ascertained that he had discussed it with counsel and that he had no questions. We find that defendant's combined oral and written waiver of appeal was knowing, voluntary and intelligent (see People v. Sanders, 25 N.Y.3d 337, 340–341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ; People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Hall, 167 A.D.3d 1165, 1165–1166, 89 N.Y.S.3d 481 [2018], lvs denied 32 N.Y.3d 1201, 1204, 99 N.Y.S.3d 246, 122 N.E.3d 1158 [2019] ; People v. Carter, 166 A.D.3d 1212, 1213, 88 N.Y.S.3d 285 [2018] ). Defendant is thus foreclosed from challenging the agreed-upon sentence as harsh and excessive (see People v. Hall, 167 A.D.3d at 1166, 89 N.Y.S.3d 481 ). Further, his challenge to the sufficiency of the evidence before the grand jury was waived by his guilty plea (see People v. Hansen, 95 N.Y.2d 227, 233, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ; People v. Brice, 146 A.D.3d 1152, 1154, 46 N.Y.S.3d 282 [2017], lv denied 29 N.Y.3d 996, 57 N.Y.S.3d 717, 80 N.E.3d 410 [2017] ).
Turning to defendant's motion to vacate the judgment, the valid appeal waiver precludes consideration of his ineffective assistance of counsel claims except to the extent that they impact upon the voluntariness of his guilty plea (see People v. Dickerson, 168 A.D.3d 1194, 1195, 90 N.Y.S.3d 702 [2019] ). Defendant contends that the felony complaints were defective in that they allege that he sold heroin to an undercover police officer, but thereafter state that a narcotics identification kit determined that the substance was cocaine, an inconsistency never addressed by defense counsel. The three counts in the indictment charged defendant with the sale of heroin. Assuming that these inconsistencies impacted upon the voluntariness of his guilty plea, his arguments lack merit.
As defendant's ineffective assistance of counsel claims rely upon matters appearing both in the record on direct appeal and outside of the record, they present a mixed but unified claim that is properly addressed in a CPL 440.10 motion to vacate (see People v. Taylor, 156 A.D.3d 86, 91–92, 64 N.Y.S.3d 714 [2017], lv denied 30 N.Y.3d 1120, 77 N.Y.S.3d 345, 101 N.E.3d 986 [2018] ). The motion papers did not specify which subsections defendant was relying upon; we find that his contentions are raised under CPL 440.10(1)(a) and (h).
Although a jurisdictional defect in an indictment survives an appeal waiver and is not subject to preservation rules (see People v. Pierce, 14 N.Y.3d 564, 570 n. 2, 904 N.Y.S.2d 255, 930 N.E.2d 176 [2010] ), this indictment was not jurisdictionally defective. "An indictment is rendered jurisdictionally defective only if it does not charge the defendant with the commission of a particular crime, by, for example, failing to allege every material element of the crime charged, or alleging acts that do not equal a crime at all" ( People v. Hansen, 95 N.Y.2d at 231, 715 N.Y.S.2d 369, 738 N.E.2d 773 ; see People v. D'Angelo, 98 N.Y.2d 733, 734–735, 750 N.Y.S.2d 811, 780 N.E.2d 496 [2002] ). Here, the grand jury was free to indict upon finding reasonable cause to believe that defendant committed the charged offenses of criminal sale of heroin, and returned a valid and sufficient indictment that cited the pertinent Penal Law sections and recited the statutory elements of the crimes (see People v. Hansen, 95 N.Y.2d at 231, 715 N.Y.S.2d 369, 738 N.E.2d 773 ; see also CPL 190.65[1] ). Consequently, defendant's claims regarding the felony complaints were rendered academic, as these instruments were superseded by the valid indictment (see People v. Williams, 155 A.D.3d 1253, 1255, 64 N.Y.S.3d 742 [2017], lv denied 31 N.Y.3d 1089, 79 N.Y.S.3d 111, 103 N.E.3d 1258 [2018] ; People v. Watson, 105 A.D.3d 1264, 1265, 963 N.Y.S.2d 600 [2013] ; People v. Black, 270 A.D.2d 563, 564, 705 N.Y.S.2d 696 [2000] ).
Heroin and cocaine are both "narcotic" drugs (Penal Law §§ 220.00[7] ; 220.39[1]; see Public Health Law § 3306[I][c][11] ; [II][b][4] ).
Counsel's failure to make motions directed at inconsistencies in the accusatory instruments had "little or no chance of success" — given the valid, superseding indictment — and, thus, did not constitute ineffective assistance ( People v. Carver, 27 N.Y.3d 418, 421, 33 N.Y.S.3d 857, 53 N.E.3d 734 [2016] [internal quotation marks and citation omitted]; see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; People v. Chaney, 160 A.D.3d 1281, 1285–1286, 76 N.Y.S.3d 257 [2018], lv denied 31 N.Y.3d 1146, 83 N.Y.S.3d 427, 108 N.E.3d 501 [2018] ). In any event, defendant indicated at the time of the plea allocution that he had adequate time to confer with counsel and was satisfied with counsel's representation. We further note that counsel secured a favorable plea deal that avoided potentially longer consecutive sentences, and nothing in the record casts doubt upon counsel's effectiveness (see People v. Rudolph, 170 A.D.3d 1258, 1262, 95 N.Y.S.3d 629 [2019] ). Defendant's conclusory claims of being coerced are belied by the record, in which he represented to the court that he was not being coerced or forced to accept the plea deal (see People v. Jones, 161 A.D.3d 1311, 1314, 77 N.Y.S.3d 201 [2018], lv denied 31 N.Y.3d 1118, 81 N.Y.S.3d 378, 106 N.E.3d 761 [2018] ). In view of the foregoing, defendant's CPL article 440 motion was properly denied.
Defendant's claim that he was not advised of his right to testify before the grand jury was not raised in his motion to vacate. In any event, it is unsupported by the record, which does not indicate that he requested to testify; finally, even if he did, the failure to secure defendant's testimony before the grand jury would not constitute ineffective assistance of counsel (see People v. Wiggins, 89 N.Y.2d 872, 873, 653 N.Y.S.2d 91, 675 N.E.2d 845 [1996] ; People v. Zayas–Torres, 143 A.D.3d 1176, 1177, 40 N.Y.S.3d 599 [2016], lv denied 30 N.Y.3d 984, 67 N.Y.S.3d 587, 89 N.E.3d 1267 [2017] ; see also People v. Hogan, 26 N.Y.3d 779, 786–787, 28 N.Y.S.3d 1, 48 N.E.3d 58 [2016] ).
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Egan Jr., Clark, Mulvey and Pritzker, JJ., concur. ORDERED that the judgment and order are affirmed.