Opinion
107780 109195
03-22-2018
The PEOPLE of the State of New York, Respondent, v. Jason GUYNUP, Appellant.
Mark Diamond, Albany, for appellant. Joel E. Abelove, District Attorney, Troy (Vincent J. O'Neill of counsel), for respondent.
Mark Diamond, Albany, for appellant.
Joel E. Abelove, District Attorney, Troy (Vincent J. O'Neill of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Mulvey, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Aarons, J.Appeals (1) from a judgment of the County Court of Rensselaer County (Ceresia, J.), rendered August 26, 2013, convicting defendant upon his plea of guilty of the crime of murder in the second degree, and (2) by permission, from a order of said court (Young, J.), entered February 10, 2017, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
In full satisfaction of a nine-count indictment, defendant pleaded guilty to murder in the second degree in exchange for a prison term of 20 years to life. The indictment stemmed from an incident in which defendant—while the victim's sister, defendant's two young children and another child were present in the victim's home—stabbed the victim (his girlfriend) to death with a knife. As part of the plea agreement, defendant was required to waive his right to appeal and full, final, stay-away orders of protection would be issued against defendant in favor of, among others, his two children. Consistent with the terms of the plea agreement, defendant subsequently pleaded guilty to murder in the second degree, and County Court (Ceresia, J.) sentenced defendant to the agreed-upon prison term. Defendant then filed a pro se motion pursuant to CPL 440.10 to vacate his conviction upon the ground that he had received the ineffective assistance of counsel. County Court (Young, J.) denied the motion without a hearing. Defendant now appeals from the judgment of conviction and, by permission, from the order denying his CPL article 440 motion.
Regardless of the validity of defendant's waiver of the right to appeal (see People v. Leach , 26 N.Y.3d 1154, 1154, 48 N.E.3d 497 [2016] ; People v. Byrne , 37 A.D.3d 179, 180, 829 N.Y.S.2d 75 [2007] ), his challenge to the factual sufficiency of his plea is unpreserved for our review absent evidence of an appropriate postallocution motion (see People v. Smith , 155 A.D.3d 1244, 1245, 65 N.Y.S.3d 580 [2017] ; People v. Terrell , 123 A.D.3d 1341, 1341–1342, 999 N.Y.S.2d 586 [2014], lv denied 25 N.Y.3d 953, 30 N.E.3d 174 [2015] ), and the narrow exception to the preservation requirement was not triggered (see People v. Mydosh , 117 A.D.3d 1195, 1196, 984 N.Y.S.2d 687 [2014], lv denied 24 N.Y.3d 963, 996 N.Y.S.2d 222, 20 N.E.3d 1002 [2014] ; People v. Durham , 110 A.D.3d 1145, 1145, 973 N.Y.S.2d 425 [2013] ). Additionally, notwithstanding the fact that the indictment contained a clerical error, the record makes clear that defendant was charged with and pleaded guilty to intentional murder (see People v. Jackson , 128 A.D.3d 1279, 1279–1280, 9 N.Y.S.3d 739 [2015], lv denied 26 N.Y.3d 930, 17 N.Y.S.3d 93, 38 N.E.3d 839 [2015] ), and such error did not deprive defendant of fair notice of the charge against him (see id. at 1279–1280, 9 N.Y.S.3d 739 ; People v. Ashley , 89 A.D.3d 1283, 1285, 933 N.Y.S.2d 134 [2011], lv denied 18 N.Y.3d 955, 944 N.Y.S.2d 483, 967 N.E.2d 708 [2012] ; People v. Sterling , 27 A.D.3d 950, 951–952, 811 N.Y.S.2d 212 [2006], lv denied 6 N.Y.3d 898, 817 N.Y.S.2d 633, 850 N.E.2d 680 [2006] ). Finally, defendant's challenge to the permanent orders of protection entered in favor of, among others, his children is unpreserved for our review given defendant's failure to make a timely objection before the sentencing court or move to amend the orders (see People v. Nieves , 2 N.Y.3d 310, 316–317, 778 N.Y.S.2d 751, 811 N.E.2d 13 [2004] ; People v. White, 144 A.D.3d 1057, 1058, 40 N.Y.S.3d 918 [2016], lv denied 29 N.Y.3d 953, 54 N.Y.S.3d 384, 76 N.E.3d 1087 [2017] ; People v. McCoy , 107 A.D.3d 1454, 1454–1455, 967 N.Y.S.2d 309 [2013], lv denied 22 N.Y.3d 957, 977 N.Y.S.2d 188, 999 N.E.2d 553 [2013] ; People v. Decker , 77 A.D.3d 675, 675, 908 N.Y.S.2d 361 [2010], lv denied 15 N.Y.3d 952, 917 N.Y.S.2d 112, 942 N.E.2d 323 [2010] ), and we decline defendant's request to take corrective action in the interest of justice.
The indictment, which incorrectly referenced Penal Law § 125.25 (2), depraved indifference murder, rather than Penal Law § 125.25 (1), intentional murder, nonetheless accused defendant of causing the victim's death with the intent to do so.
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Defendant's related challenge to the voluntariness of his plea—an assertion that arises in the context of his CPL 440.10 motion and is premised upon the ineffective assistance of counsel—is equally unavailing. Preliminarily, we cannot say that County Court erred in denying defendant's motion without a hearing (see CPL 440.30[4][d] ). The affidavit tendered by defendant's mother in support of the motion, wherein she purports to attest to what transpired during conversations between defendant and counsel, is devoid of evidentiary value; nowhere in the affidavit does defendant's mother state that she was present for such conversations and, hence, her affidavit is premised largely upon hearsay (see generally People v. Jimenez, 142 A.D.3d 149, 156, 37 N.Y.S.3d 225 [2016] ). Accordingly, County Court was left with nothing but defendant's self-serving assertions that he was denied the effective assistance of counsel (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] ).
"In the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel" ( People v. Brown , 154 A.D.3d 1004, 1006, 61 N.Y.S.3d 717 [2017] [internal quotation marks and citations omitted]; accord People v. Watson , 152 A.D.3d 1059, 1059, 59 N.Y.S.3d 570 [2017], lv denied 30 N.Y.3d 954, 67 N.Y.S.3d 138, 89 N.E.3d 528 [2017] ; People v. Driscoll , 147 A.D.3d 1157, 1158, 48 N.Y.S.3d 522 [2017], lv denied 29 N.Y.3d 1078, 64 N.Y.S.3d 168, 86 N.E.3d 255 [2017] ). Here, defense counsel's firm made appropriate pretrial motions (see People v. Brown , 154 A.D.3d at 1006, 61 N.Y.S.3d 717) and counsel secured an advantageous plea for defendant (see People v. Rapp , 154 A.D.3d 1007, 1009, 63 N.Y.S.3d 114 [2017] ). Defendant also indicated during his plea colloquy that he had been afforded sufficient time to confer with counsel and was satisfied with counsel's services. Defendant's belated assertion that he had a viable intoxication or extreme emotional disturbance defense that, in turn, defense counsel failed to adequately discuss or explore, is premised upon unsubstantiated comments made by defendant during his presentence interview with the Probation Department, wherein defendant claimed that he was unable to recall much of what had transpired on the night of the murder due to ingesting a combination of Xanax, alcohol and marihuana. Although subsequent testing did reveal that defendant had certain drugs in his system on the night in question, such proof falls short of establishing that defendant possessed—and counsel ignored—a viable intoxication defense (see People v. Robetoy , 48 A.D.3d 881, 882–883, 851 N.Y.S.2d 297 [2008] ); we reach a similar conclusion with respect to defendant's claim that his claimed depression and anxiety gave rise to a viable extreme emotional disturbance defense. Defendant's remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit.
ORDERED that the judgment and order are affirmed.
Egan Jr., J.P., Lynch, Mulvey and Pritzker, JJ., concur.