Opinion
109787, 112145
12-30-2021
The PEOPLE of the State of New York, Respondent, v. Robert BALLARD, Also Known as GO, Appellant.
Angela M. Kelley, Albany, for appellant. Meagan K. Galligan, District Attorney, Monticello (Rachel I. Kesten of counsel), for respondent.
Angela M. Kelley, Albany, for appellant.
Meagan K. Galligan, District Attorney, Monticello (Rachel I. Kesten of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Clark, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Egan Jr., J.P.
Appeals (1) from a judgment of the Supreme Court (Schick, J.), rendered June 26, 2017 in Sullivan County, convicting defendant upon his pleas of guilty of the crimes of conspiracy in the second degree, criminal possession of a weapon in the second degree and criminal possession of a controlled substance in the second degree, and (2) by permission, from an order of said court, entered March 2, 2020 in Sullivan County, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
Defendant and several codefendants, including his wife, were charged in an indictment with offenses related to their involvement in a narcotics distribution ring and, in his case, weapon possession. In satisfaction of the charges against defendant and with assurances that the People would recommend both that he serve no more than 19 years in prison and that his wife serve only a term of probation supervision in connection with a plea resolving the charges against her, defendant pleaded guilty to conspiracy in the second degree, criminal possession of a controlled substance in the first degree and criminal possession of a weapon in the second degree. He further purportedly waived his right to appeal as part of the agreement. During the plea colloquy, Supreme Court advised defendant that it would likely sentence him to a total of 14 years in prison and that, if it could not do so, it would allow him to withdraw his guilty plea.
After the parties realized that defendant was a second felony drug offender previously convicted of a violent felony who could not be sentenced to less than 15 years in prison on the drug possession count, they agreed to modify the plea arrangement so that, as to said count, defendant would plead guilty to a reduced charge of criminal possession of a controlled substance in the second degree and forfeit certain monies and property (see Penal Law § 70.71[4] ). He entered a plea to that charge following a colloquy. Supreme Court then sentenced defendant to concurrent terms of 14 years in prison to be followed by five years of postrelease supervision on the drug possession conviction, 7½ to 15 years in prison on the conspiracy conviction and 10 years in prison to be followed by five years of postrelease supervision on the weapon possession conviction. Defendant appeals from the judgment of conviction and, by permission, from the subsequent denial of his CPL article 440 motion to vacate the judgment.
We affirm. The People initially concede, and we agree, that defendant's appeal waiver was invalid (see People v. Jones, 199 A.D.3d 1069, 1070, 156 N.Y.S.3d 552 [2021] ; People v. Barrales, 179 A.D.3d 1313, 1314–1315, 118 N.Y.S.3d 263 [2020] ). Nevertheless, "[i]n the absence of a motion to withdraw his plea, defendant's challenge to the voluntariness of his plea was not preserved in his direct appeal" ( People v. Allevato, 170 A.D.3d 1264, 1265, 93 N.Y.S.3d 753 [2019], lv denied 34 N.Y.3d 949, 110 N.Y.S.3d 623, 134 N.E.3d 622 [2019] ; see People v. Dickerson, 198 A.D.3d 1190, 1192–1193, 156 N.Y.S.3d 526 [2021] ). The narrow exception to the preservation requirement does not apply, as he did not make any statements during either plea colloquy that were inconsistent with his guilt or called the voluntariness of his pleas into question (see People v. Johnson, 194 A.D.3d 1267, 1269, 147 N.Y.S.3d 258 [2021] ; People v. Stanley, 189 A.D.3d 1818, 1818, 136 N.Y.S.3d 569 [2020] ). To the extent that defendant advances an ineffective assistance of counsel claim upon his direct appeal, and that argument survives his guilty pleas, it is similarly unpreserved (see People v. Stanley, 189 A.D.3d at 1818, 136 N.Y.S.3d 569 ; People v. Allevato, 170 A.D.3d at 1265, 93 N.Y.S.3d 753 ). Finally, defendant's claim of a Brady violation is belied by the record.
Turning to the appeal from the order denying defendant's CPL article 440 motion, he argued that counsel rendered ineffective assistance by giving him bad advice to forgo his pending motion to suppress evidence recovered from his vehicle during a traffic stop and plead guilty. First, although not denominated to defendant's liking, the record confirms that counsel did appropriately move to suppress the evidence recovered from that stop. There was nothing ineffective in counsel's downplaying the importance of defendant's claim that the stop was pretextual, as a valid basis existed for the stop (see People v. Robinson, 97 N.Y.2d 341, 346, 741 N.Y.S.2d 147, 767 N.E.2d 638 [2001] ; People v. Blandford, 190 A.D.3d 1033, 1035, 138 N.Y.S.3d 710 [2021], affd 37 N.Y.3d 1062, 155 N.Y.S.3d 1, 176 N.E.3d 1043 [2021] ). Suppression would not have been warranted, in other words, and counsel was not obliged to raise an issue that stood no chance of success (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; People v. Ruffin, 191 A.D.3d 1174, 1182, 143 N.Y.S.3d 134 [2021], lv denied 37 N.Y.3d 960, 147 N.Y.S.3d 515, 170 N.E.3d 389 [2021] ). Defendant's remaining complaints amount to the assertion that, had counsel not urged him to plead guilty and "giv[e] up his right to pretrial hearings to determine the admissibility of any evidence against [him]," Supreme Court might have credited the accounts offered by him and his wife as to how the traffic stop unfolded and suppressed the evidence recovered from his vehicle. As those "allegations fail to establish any basis upon which to find ... that counsel lacked a strategic reason for" urging defendant to forgo the hearing and plead guilty – "namely, the advantageous plea offer" that resolved the charges against him and limited both his and his wife's sentencing exposure – they give no reason to believe that counsel was ineffective ( People v. Chaney, 160 A.D.3d 1281, 1285, 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] ; see People v. Lewis, 138 A.D.3d 1346, 1349, 30 N.Y.S.3d 387 [2016], lv denied 28 N.Y.3d 1073, 47 N.Y.S.3d 232, 69 N.E.3d 1028 [2016] ). Thus, as the foregoing allegations, even if credited, do not demonstrate that defendant was deprived of meaningful representation, Supreme Court properly denied his motion without a hearing (see People v. Blanford, 179 A.D.3d 1388, 1394, 118 N.Y.S.3d 294 [2020], lv denied 35 N.Y.3d 968, 125 N.Y.S.3d 13, 148 N.E.3d 477 [2020] ; People v. Jones, 161 A.D.3d 1311, 1313–1314, 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] ).
Defendant now suggests that counsel also failed to provide meaningful representation in connection with sentencing issues, a claim that would have been appropriately raised upon his CPL article 440 motion as part of an ineffective assistance argument "rely[ing] upon matters appearing both in the record on direct appeal and outside of the record" (People v. Thacker, 173 A.D.3d 1360, 1361 n. 2, 102 N.Y.S.3d 764 [2019], lv denied 34 N.Y.3d 938, 109 N.Y.S.3d 730, 133 N.E.3d 434 [2019] ; see People v. Burks, 187 A.D.3d 1405, 1407–1408, 133 N.Y.S.3d 333 [2020], lv denied 36 N.Y.3d 1095, 144 N.Y.S.3d 149, 167 N.E.3d 1284 [2021] ). It was not raised in his motion, however, and is therefore unpreserved for our review (see People v. Dorsey, 170 A.D.3d 1325, 1326, 94 N.Y.S.3d 420 [2019], lv denied 33 N.Y.3d 1068, 105 N.Y.S.3d 38, 129 N.E.3d 358 [2019] ).
Lynch, Clark, Aarons and Pritzker, JJ., concur.
ORDERED that the judgment and order are affirmed.