Opinion
658 KA 20-00459
10-06-2023
The PEOPLE of the State of New York, Respondent, v. Kamel DAVIS, Defendant-Appellant. (Appeal No. 1.)
BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT-APPELLANT. MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (R. MICHAEL TANTILLO OF COUNSEL), FOR RESPONDENT.
BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT-APPELLANT.
MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (R. MICHAEL TANTILLO OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, NOWAK, AND DELCONTE, 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 two counts of attempted gang assault in the second degree ( Penal Law §§ 110.00, 120.06 ). When this appeal was previously before us, we concluded that County Court erred in summarily denying defendant's motion to withdraw his guilty plea because—insofar as defense counsel had erroneously advised defendant regarding the possibility of a conviction at trial of attempted gang assault in the second degree even though such a crime is a legal impossibility for trial purposes—the circumstances raised a genuine factual issue with respect to the voluntariness of the plea that could only be resolved after a hearing ( People v. Davis , 206 A.D.3d 1603, 1604-1605, 167 N.Y.S.3d 894 [4th Dept. 2022] ). We held this case, reserved decision, and remitted the matter to County Court for a hearing to resolve that issue ( id. at 1605, 167 N.Y.S.3d 894 ). Following the hearing on remittal, the court denied defendant's motion. We now affirm.
Defendant contends that, as a result of the erroneous advice provided by his attorneys, the plea was not knowingly, intelligently, and voluntarily entered, and that the court thus abused its discretion in denying his motion. We reject that contention.
"A determination on a defendant's motion to withdraw a plea prior to sentencing is left to the sound discretion of the court" ( People v. Fisher , 28 N.Y.3d 717, 721, 49 N.Y.S.3d 344, 71 N.E.3d 932 [2017] ; see CPL 220.60 [3] ). "Whether a plea was knowing, intelligent and voluntary is dependent upon a number of factors ‘including the nature and terms of the agreement, the reasonableness of the bargain, and the age and experience of the accused’ ... That the defendant allegedly received inaccurate information regarding [the possibility of a conviction at trial and the resulting impact upon] his possible sentence exposure is another factor which must be considered by the court, but it is not, in and of itself, dispositive" ( People v. Garcia , 92 N.Y.2d 869, 870, 677 N.Y.S.2d 772, 700 N.E.2d 311 [1998] ; see Davis , 206 A.D.3d at 1605, 167 N.Y.S.3d 894 ).
Here, although we agree with defendant that his attorneys erroneously advised him about the possibility of being convicted at trial of an ostensible lesser included charge of attempted gang assault in the second degree (see Davis , 206 A.D.3d at 1604-1605, 167 N.Y.S.3d 894 ; People v. Delacruz , 177 A.D.3d 541, 542, 110 N.Y.S.3d 682 [1st Dept. 2019], lv denied 34 N.Y.3d 1158, 120 N.Y.S.3d 251, 142 N.E.3d 1153 [2020] ; Matter of Cisely G. , 81 A.D.3d 508, 508-509, 918 N.Y.S.2d 23 [1st Dept. 2011] ), that fact " ‘is not, in and of itself, dispositive’ of the issue whether defendant's plea was knowingly and voluntarily entered" ( People v. Johnson , 24 A.D.3d 1259, 1259, 808 N.Y.S.2d 515 [4th Dept. 2005], lv denied 6 N.Y.3d 814, 812 N.Y.S.2d 454, 845 N.E.2d 1285 [2006], quoting Garcia , 92 N.Y.2d at 870, 677 N.Y.S.2d 772, 700 N.E.2d 311 ; see People v. Williams , 170 A.D.3d 1666, 1667, 96 N.Y.S.3d 776 [4th Dept. 2019] ). As the court properly determined, the record establishes that defendant was 24 years old at the time he pleaded guilty and had a number of previous experiences with the criminal justice system, including several prior convictions by guilty plea, some of which were to reduced charges (see Williams , 170 A.D.3d at 1667, 96 N.Y.S.3d 776 ; Johnson , 24 A.D.3d at 1259-1260, 808 N.Y.S.2d 515 ). The hearing testimony further establishes that defendant's attorneys discussed with him the strengths and weaknesses of the People's case (see People v. Thompson , 174 A.D.2d 702, 703, 571 N.Y.S.2d 553 [2d Dept. 1991], lv denied 79 N.Y.2d 833, 580 N.Y.S.2d 213, 588 N.E.2d 111 [1991] ). The court also properly determined that the nature and terms of the plea agreement were advantageous and the bargain was reasonable inasmuch as defendant satisfied an indictment charging him with two counts of gang assault in the second degree ( Penal Law § 120.06 ), along with another indictment charging him with bail jumping (§ 215.56), and received concurrent sentences aggregating to three years of imprisonment to be followed by two years of postrelease supervision while he avoided the possibility of consecutive sentences that could have totaled over 30 years of imprisonment (see Williams , 170 A.D.3d at 1667, 96 N.Y.S.3d 776 ; Johnson , 24 A.D.3d at 1260, 808 N.Y.S.2d 515 ). Based on the foregoing, we conclude that the court did not abuse its discretion in denying defendant's motion (see Williams , 170 A.D.3d at 1667, 96 N.Y.S.3d 776 ; Johnson , 24 A.D.3d at 1260, 808 N.Y.S.2d 515 ).
We also reject defendant's related contention that the court abused its discretion in denying his motion based on alleged ineffective assistance of counsel. "In the context of a guilty plea, a defendant has been afforded meaningful representation when [the defendant] receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of [defense] counsel" ( People v. Ford , 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995] ; see People v. Price , 194 A.D.3d 1382, 1385, 149 N.Y.S.3d 393 [4th Dept. 2021], lv denied 37 N.Y.3d 974, 150 N.Y.S.3d 701, 172 N.E.3d 813 [2021] ). "The phrase ‘meaningful representation’ does not mean ‘perfect representation’ " ( Ford , 86 N.Y.2d at 404, 633 N.Y.S.2d 270, 657 N.E.2d 265, quoting People v. Modica , 64 N.Y.2d 828, 829, 486 N.Y.S.2d 931, 476 N.E.2d 330 [1985] ). Here, we conclude that the mistaken advice by defendant's attorneys with respect to the possibility of conviction at trial of attempted gang assault in the second degree does not rise to the level of ineffective assistance of counsel, particularly considering that defense counsel negotiated a very favorable plea (see Modica , 64 N.Y.2d at 829, 486 N.Y.S.2d 931, 476 N.E.2d 330 ; People v. Lovette , 188 A.D.3d 1726, 1728, 136 N.Y.S.3d 630 [4th Dept. 2020], lv denied 36 N.Y.3d 1051, 140 N.Y.S.3d 889, 164 N.E.3d 976 [2021] ; People v. Cave , 278 A.D.2d 941, 941, 718 N.Y.S.2d 677 [4th Dept. 2000], lv denied 96 N.Y.2d 798, 726 N.Y.S.2d 376, 750 N.E.2d 78 [2001] ; see generally People v. Couser , 28 N.Y.3d 368, 378, 45 N.Y.S.3d 301, 68 N.E.3d 26 [2016] ).