Opinion
No. 2019-03008 Ind. No. 883/17
01-24-2024
The People of the State of New York, respondent, v. Clint Edwards, appellant.
Kenyon C. Trachte, Newburgh, NY, for appellant, and appellant pro se. David M. Hoovler, Goshen, NY (Andrew R. Kass and Robert H. Middlemiss of counsel), for respondent.
Kenyon C. Trachte, Newburgh, NY, for appellant, and appellant pro se.
David M. Hoovler, Goshen, NY (Andrew R. Kass and Robert H. Middlemiss of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., ROBERT J. MILLER, LARA J. GENOVESI, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Orange County (Craig Stephen Brown, J.), rendered February 7, 2019, convicting him of attempted criminal sexual act in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the People's contention, the record demonstrates that the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v Thomas, 34 N.Y.3d 545, 564; People v Boykin, 219 A.D.3d 499; People v Rivera, 201 A.D.3d 673, 674). The County Court's colloquy mischaracterized the nature of the appeal waiver by stating that the defendant's conviction and sentence would be final, thereby suggesting that the waiver may be an absolute bar to the taking of an appeal (see People v Boykin, 219 A.D.3d at 499; People v Rivera, 201 A.D.3d at 674). In addition, the written waiver form did not clarify that appellate review remained available for select issues (see People v Thomas, 34 N.Y.3d at 566; People v Boykin, 219 A.D.3d at 499; People v Momoh, 192 A.D.3d 915, 916). Thus, the defendant's purported appeal waiver does not preclude review of the issues raised by the defendant on appeal.
The County Court providently exercised its discretion in declining to consider the defendant's pro se motion to withdraw his plea of guilty, inter alia, because the defendant was represented by counsel (see People v Rodriguez, 95 N.Y.2d 497, 501; People v Johnson, 195 A.D.3d 1420, 1420-1421). Moreover, contrary to the defendant's contention, he was not denied meaningful representation on his pro se motion to withdraw his plea of guilty. "[C]ounsel takes a position adverse to his [or her] client when stating that the defendant's motion lacks merit, or that the defendant, who is challenging the voluntariness of his [or her] guilty plea, made a knowing plea... that was in his [or her] best interest" (People v Washington, 25 N.Y.3d 1091, 1095 [citation, alterations, and internal quotation marks omitted]; see People v Pointer, 218 A.D.3d 499, 500). Here, by advising the court that he was not adopting the defendant's pro se motion to withdraw his plea of guilty, defense counsel did not adversely express an opinion as to the merits of the defendant's motion, and therefore, the appointment of a new attorney to represent the defendant on that motion was not required (see People v Pointer, 218 A.D.3d at 500; cf. People v Caccavale, 305 A.D.2d 695, 695).
The defendant's contention, raised in his pro se supplemental brief, that his plea of guilty was not knowingly, intelligently, and voluntarily made, is not preserved for appellate review, as the defendant, in effect, withdrew his pro se motion to withdraw his plea of guilty and did not otherwise raise the issue before the County Court (see People v Brown, 213 A.D.3d 1035, 1036; People v Coverdale, 189 A.D.3d 1610, 1610-1611; People v Cantey, 161 A.D.3d 1449, 1450). In any event, the defendant's contention is without merit. "The record demonstrates that the defendant understood the charges and made an intelligent decision to enter the plea of guilty" (People v Coverdale, 189 A.D.3d at 1611). To the extent that the defendant contends that he lacked capacity to understand the proceedings against him or that he was unable to assist in his defense, his contention is not supported by the record (see CPL 730.30[1]). Accordingly, contrary to the defendant's contention, raised in his pro se supplemental brief, the court providently exercised its discretion by accepting the defendant's plea of guilty without first ordering, sua sponte, a competency hearing (see People v Shaffer, 81 A.D.3d 989, 989; cf. People v Frazier, 114 A.D.2d 1038, 1038). "[A] trial court is not required to hold a CPL article 730 hearing simply because a defendant has a history of mental illness, and such a history does not necessarily render a defendant incompetent to enter a knowing and voluntary plea" (People v Harrison, 52 A.D.3d 969, 970 [internal quotation marks omitted]; see People v Pendleton, 128 A.D.3d 856, 856) .
"By pleading guilty, a defendant forfeits appellate review of a claim of ineffective assistance of counsel unless the claim directly involves the plea negotiation and sentence" (People v Coverdale, 189 A.D.3d at 1611; see People v Monroe, 174 A.D.3d 649, 650; People v Weston, 145 A.D.3d 746, 747). Thus, here, the defendant's contention, raised in his pro se supplemental brief, that he was deprived of the effective assistance of counsel because defense counsel, inter alia, failed to adequately explain the plea terms to him "survives his guilty plea 'only insofar as he demonstrates that the plea bargaining process was infected by [the] allegedly ineffective assistance or that [he] entered the plea because of [his] attorney['s] allegedly poor performance'" (People v Johnson, 195 A.D.3d at 1421, quoting People v Rausch, 126 A.D.3d 1535, 1535 [internal quotation marks omitted]). The defendant's contention that he was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and, thus, constitutes a "mixed claim of ineffective assistance" (People v Maxwell, 89 A.D.3d 1108, 1109; see People v Evans, 16 N.Y.3d 571, 575 n2). Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal (see People v Freeman, 93 A.D.3d 805, 806; People v Maxwell, 89 A.D.3d at 1109).
The defendant failed to preserve for appellate review his challenges, in effect, to the grand jury proceeding, as he "failed to make a timely pretrial motion to dismiss the indictment raising the grounds now urged" (People v Morrow, 172 A.D.3d 905, 905). Moreover, the defendant withdrew all of his motions, including suppression of evidence, and, by pleading guilty, forfeited any claim of prosecutorial misconduct and that the evidence that was presented to the grand jury was legally insufficient (see People v Brown, 170 A.D.3d 878, 880; People v Devodier, 102 A.D.3d 884, 885).
The sentence imposed was not excessive (see People v Suitte, 90 A.D.2d 80).
The defendant's remaining contention is without merit.
CONNOLLY, J.P., MILLER, GENOVESI and DOWLING, JJ., concur.