Opinion
111550, 113144
02-09-2023
The PEOPLE of the State of New York, Respondent, v. Karl W. KIMBALL, Appellant.
Rural Law Center of New York, Inc., Castleton (Kristin A. Bluvas of counsel), for appellant. Clea Weiss, Special Prosecutor, Ithaca, for respondent.
Rural Law Center of New York, Inc., Castleton (Kristin A. Bluvas of counsel), for appellant.
Clea Weiss, Special Prosecutor, Ithaca, for respondent.
Before: Garry, P.J., Lynch, Aarons, Reynolds Fitzgerald and Fisher, JJ.
MEMORANDUM AND ORDER
Reynolds Fitzgerald, J.
Appeals (1) from a judgment of the County Court of Saratoga County (James A. Murphy III, J.), rendered May 29, 2019, convicting defendant upon his plea of guilty of the crime of attempted sexual abuse in the first degree, and (2) by permission, from an order of said court, entered October 14, 2021, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
Defendant was charged by felony complaint with sexual abuse in the first degree based upon conduct involving a child who was less than 11 years old. Following the filing of various pro se motions and the assignment of counsel, defendant, who had a prior felony sex conviction, waived indictment and agreed to be prosecuted pursuant to a superior court information charging him with one count of attempted sexual abuse in the first degree with the understanding that he would be sentenced to a prison term of four years followed by a period of postrelease supervision ranging from 5 to 15 years. The plea agreement also required defendant to waive his right to appeal. Defendant pleaded guilty in conformity with the plea agreement, and County Court thereafter sentenced defendant to a prison term of four years followed by 15 years of postrelease supervision. Two years later, defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction contending that his plea was involuntary and that he had been denied his right to a speedy trial and to the effective assistance of counsel. The People opposed the motion, and, by order entered October 14, 2021, County Court denied the motion without a hearing. Defendant appeals from the judgment of conviction and, by permission, from the order denying his postconviction motion.
Preliminarily, the People concede – and our review of the record confirms – that defendant's waiver of the right to appeal is invalid. Accordingly, defendant's challenge to the perceived severity of his sentence is not precluded (see People v. Smith, 208 A.D.3d 1538, 1539, 174 N.Y.S.3d 614 [3d Dept. 2022] ). That said, upon due consideration of all of the relevant factors (see e.g. People v. Quick, 207 A.D.3d 954, 955, 170 N.Y.S.3d 523 [3d Dept. 2022] ), including the nature of the underlying conduct, we do not find the sentence imposed to be unduly harsh or severe (see CPL 470.15[6][b] ). Contrary to defendant's assertion, the mere fact that other defendants convicted of the same or similar crimes received lesser terms of imprisonment or periods of postrelease supervision "is of no moment, as no two defendants are quite alike even if they have committed, in legal definition, identical offenses" ( People v. Manley, 70 A.D.3d 1125, 1125, 894 N.Y.S.2d 575 [3d Dept. 2010] [internal quotation marks and citation omitted]). Defendant next contends that his plea was involuntary because County Court failed to properly apprise him of his Boykin rights and, further, provided inconsistent information regarding defendant's sentencing exposure. Inasmuch as defendant did not move to withdraw his plea despite an opportunity to do so, such issues are unpreserved for our review (see People v. Podeswa, 205 A.D.3d 1139, 1140, 167 N.Y.S.3d 640 [3d Dept. 2022], lv denied 38 N.Y.3d 1135, 172 N.Y.S.3d 857, 193 N.E.3d 522 [2022] ; People v. Lumpkin, 201 A.D.3d 1257, 1257, 157 N.Y.S.3d 798 [3d Dept. 2022] ). The narrow exception to the preservation requirement was not triggered as defendant did not make any statements during the plea colloquy that negated an element of the charged crime, were inconsistent with his guilt or otherwise called into question the voluntariness of his plea (see People v. Nichols, 194 A.D.3d 1114, 1115, 146 N.Y.S.3d 699 [3d Dept. 2021], lv denied 37 N.Y.3d 973, 150 N.Y.S.3d 700, 172 N.E.3d 812 [2021] ). In any event, although County Court did not expressly advise defendant that he would be giving up his right against self-incrimination, "[a] plea need not be invalidated simply because the trial judge failed to enumerate all the constitutional rights being waived by a guilty plea" ( People v. Crampton, 201 A.D.3d 1020, 1023, 159 N.Y.S.3d 263 [3d Dept. 2022] [internal quotation marks and citation omitted], lv denied 37 N.Y.3d 1160, 160 N.Y.S.3d 690, 181 N.E.3d 1118 [2022] ; see People v. Nichols, 194 A.D.3d at 1115, 146 N.Y.S.3d 699 ), and defendant's sentencing exposure, including the range encompassing the period of postrelease supervision that could be imposed, was accurately set forth at the outset of the plea colloquy (compare People v. Lumpkin, 201 A.D.3d at 1257–1258, 157 N.Y.S.3d 798 ).
Defendant also challenges the voluntariness of his plea based upon the ineffective assistance of counsel – specifically, counsel's failure to properly investigate and/or advise him of a potential intoxication defense. As defendant's ineffective assistance of counsel claim is premised upon both record-based and nonrecord-based allegations, it is properly reviewed in its entirety in the context of defendant's appeal from the denial of his CPL 440.10 motion (see People v. Fish, 208 A.D.3d 1546, 1548, 175 N.Y.S.3d 602 [3d Dept. 2022] ; People v. Goodwalt, 205 A.D.3d 1070, 1073, 167 N.Y.S.3d 250 [3d Dept. 2022], lv denied 38 N.Y.3d 1071, 171 N.Y.S.3d 452, 191 N.E.3d 404 [2022] ). In this regard, although defendant indeed moved to vacate the judgment of conviction based upon, among other things, the ineffective assistance of counsel, counsel's affirmation in support thereof makes only a general reference to trial counsel's failure to explore defendant's "options" or "discuss a defense strategy" with defendant. To the extent that defendant's accompanying affidavit elaborated upon this claim, defendant chastised counsel for failing to investigate a potential alibi defense and/or the complaining witnesses’ motives to lie. Noticeably absent from defendant's CPL 440.10 motion is any mention of a potential intoxication defense or any suggestion that he lacked the requisite intent to commit the subject crime. As defendant did not move to vacate the judgment of conviction upon this ground, we find this argument to be unpreserved for our review (see generally People v. Stuber, 205 A.D.3d 1147, 1149, 167 N.Y.S.3d 644 [3d Dept. 2022], lv denied 38 N.Y.3d 1136, 193 N.E.3d 511 [2022] ; People v. English, 100 A.D.3d 1147, 1148, 953 N.Y.S.2d 722 [3d Dept. 2012] ; People v. Campbell, 81 A.D.3d 1184, 1185, 917 N.Y.S.2d 419 [3d Dept. 2011] ).
As defendant has not briefed the remaining grounds advanced in his postconviction motion, we deem such arguments to be abandoned (see People v. Phillip, 200 A.D.3d 1108, 1111, 157 N.Y.S.3d 312 [3d Dept. 2021] ).
Were we to conclude otherwise, we nonetheless would find that County Court properly denied defendant's postconviction motion without a hearing. In the context of arguing for leniency at sentencing, defense counsel suggested that defendant was "not of a clear mind" at the time of the offense, and defendant, although accepting responsibility for his conduct, contended during the course of his presentence investigation interview that "he had no recollection of touching [the child]." As evidenced by the foregoing, it is readily apparent that the viability of the asserted intoxication defense "could with due diligence by ... defendant have readily been made to appear on the record in a manner providing adequate basis for review of such ... issue upon an appeal from the judgment" of conviction ( CPL 440.10[3][a] ; see People v. Fish, 208 A.D.3d at 1549, 175 N.Y.S.3d 602 ). In any event, absent any basis – other than defendant's belated, self-serving claim – upon which to conclude that defendant had a colorable intoxication defense, counsel's failure to pursue such a defense does not rise to the level of ineffectiveness (see People v. Fish, 208 A.D.3d at 1549, 175 N.Y.S.3d 602 ; People v. Agueda, 202 A.D.3d 1153, 1155, 160 N.Y.S.3d 489 [3d Dept. 2022], lv denied 38 N.Y.3d 1031, 169 N.Y.S.3d 209, 189 N.E.3d 316 [2022] ). Defendant's remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit.
Garry, P.J., Lynch, Aarons and Fisher, JJ., concur.
ORDERED that the judgment and the order are affirmed.