People v. Bailey

2024 NY Slip Op 05842

The People of the State of New York, Respondent, v. David E. Bailey Jr., Appellant.

No. 110816 CR-23-1198

Supreme Court of New York, Third Department

November 21, 2024

Calendar Date: September 11, 2024

Bruce Evans Knoll, Albany, for appellant.

J Anthony Jordan, District Attorney, Fort Edward (Taylor Fitzsimmons of counsel), for respondent.

Before: Aarons, J.P., Lynch, Ceresia, McShan and Mackey, JJ.

Lynch J.

Appeals (1) from a judgment of the County Court of Washington County (Kelly S. McKeighan, J.), rendered August 17, 2017 convicting defendant upon his plea of guilty of the crime of rape in the first degree, and (2) by permission, from an order of said court, entered June 5, 2023, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

On November 13, 2016, police officers responded to a report that defendant was attempting to break into the residence of the victim. One of the responding officers explained that after defendant - who smelled of alcohol - expressed that he had been having a difficult time, fell to the ground and curled into the fetal position, he was transported to the behavioral health unit of a local hospital. While in the waiting room, defendant asked to speak with that police officer in private, revealing that he had raped the victim a week prior. Upon his release from the hospital, defendant was directly transported to the police station, where he again confessed to the rape. As a result, defendant was arrested and subsequently charged by indictment with rape in the first degree. Defendant's motion to suppress these inculpatory statements was denied following a Huntley hearing. After defendant rejected several plea offers, a jury trial was set to commence on July 10, 2017. That morning, defendant pleaded guilty to the single-count indictment and purported to waive his right to appeal. He was sentenced, in accordance with the plea agreement, to a prison term of 15 years, to be followed by 10 years of postrelease supervision.

In February 2023, defendant moved to vacate his conviction pursuant to CPL 440.10, arguing that the plea was obtained in violation of his constitutional right to the effective assistance of counsel (see CPL 440.10 [1] [h]), procured by duress on the part of both County Court and the police (see CPL 440.10 [1] [b]), and involuntary by reason of mental disease or defect (see CPL 440.10 [1] [e]). County Court denied the motion without a hearing. Defendant appeals from the judgment of conviction and, by permission, the denial of his CPL 440.10 motion.

Defendant seeks to vacate his plea on several grounds, raising both record-based and nonrecord-based arguments. Turning first to the direct appeal, we agree with defendant's contention that the appeal waiver is invalid. After establishing that defendant was prepared to plead guilty, County Court initially correctly advised of the trial related constitutional rights he would be forfeiting by doing so ^[1] and that the right to appeal was "separate and distinct" (see People v Lopez, 6 N.Y.3d 248, 256 [2006]). However, the court then erroneously explained that "the People's offer requires that you waive your right to appeal, meaning that what happens here today will be final." Continuing, the court asked defendant whether he "[understood] you are giving up certain rights to have a higher court review these proceedings to make sure that everything was done properly." Each of these direct statements speak to an absolute bar to an appeal. Defendant then proceeded to review and sign a written waiver with the assistance of counsel, generally confirming for the court that he understood the document and had no questions. In contrast to the court's statements noted above, the written waiver expressly outlined seven distinct issues that could still be appealed. The court, however, made no specific inquiry as to whether defendant understood the distinction between the issues waived and not waived as outlined in the written waiver form. The difficulty presented is the direct conflict between the court's erroneous statements signaling a complete bar to appellate review and the written waiver suggesting the contrary. Under these circumstances, we conclude that the written waiver did not cure the court's erroneous comments, rendering defendant's appeal waiver invalid (see People v Appiah, 41 N.Y.3d 949, 950 [2024]; People v Cisse, 228 A.D.3d 440, 441 [1st Dept 2024]; compare People v Ramos, 7 N.Y.3d 737, 738 [2006] [detailed written waiver clarified ambiguity in sentencing court's colloquy]; People v Mittler, 225 A.D.3d 1003, 1004 [3d Dept 2024]). Accordingly, defendant's challenge to the factual sufficiency of the plea colloquy is not precluded (see People v McNeil, 210 A.D.3d 1200, 1201 [3d Dept 2022]). Nevertheless, it is unpreserved for review in the absence of a postallocution motion to withdraw the plea prior to sentencing (see CPL 220.60 [3]; People v McNeil, 210 A.D.3d at 1201).

Similarly unpreserved is defendant's argument that the plea was involuntary because his statements during the plea colloquy should have alerted County Court to the fact that he had mental health issues precluding him from understanding the proceedings. Defendant did not move to withdraw the plea prior to or at sentencing and his CPL article 440 motion does not preserve this issue in the context of his direct appeal based on the underlying record (see CPL 220.60 [3]; People v Wilcox, 218 A.D.3d 965, 965 [3d Dept 2023]; see also People v Morales, 119 A.D.3d 1082, 1084 n [3d Dept 2014], lv denied 24 N.Y.3d 1086 [2014]). ^[2] To the extent defendant argues that his statements during the plea colloquy triggered the narrow exception to the preservation rule - which applies when a defendant makes statements during the plea colloquy that are "inconsistent with his [or her] guilt or otherwise call[ ] into question the voluntariness of [the] plea" - we disagree (People v Mehalick, 226 A.D.3d 1263, 1264 [3d Dept 2024], lv denied 42 N.Y.3d 928 [2024]).

Toward the beginning of the plea colloquy, defendant revealed that he had been diagnosed with certain mental health conditions, rendering his thought processes "very slow," and indicated that he had made a false confession to police. In response, County Court allowed counsel, at his request, the opportunity to consult with defendant. When the proceedings resumed, the court inquired into defendant's mental health background, during which defendant advised that he was not on medication and had been hospitalized in a behavioral health unit a week before the underlying incident. Defendant then confirmed he was able to understand the proceedings, had the "ability to think clearly as [he] s[at] here today," and "fe[lt] fine" both physically and mentally. Defense counsel also stated that he had no concerns about defendant's "ability to communicate and understand." Thereafter, defendant admitted that he had forcibly raped the victim and stated that there was "[n]o question in [his] mind" about that when asked by County Court. In these circumstances, the narrow exception to the preservation rule does not apply (see People v Blackburn, 164 A.D.3d 960, 961 [3d Dept 2018]; People v Reap, 163 A.D.3d 1287, 1288 [3d Dept 2018], lv denied 32 N.Y.3d 1128 [2018]).

In any event, were the issue properly preserved, we would find it to be unavailing. Defendant's "history of mental [health issues], by itself, did not render him incompetent to enter a knowing and voluntary plea" (People v Blackburn, 164 A.D.3d at 961), and this plea record does not support his claim that he was unable to understand the proceedings such that the plea was invalid (see People v Dolison, 189 A.D.3d 1779, 1780-1781[3d Dept 2020], lv denied 36 N.Y.3d 1119 [2021]; People v Kaszubinski, 55 A.D.3d 1133, 1135 [3d Dept 2008], lv denied 12 N.Y.3d 855 [2009]). The record also does not support defendant's assertion that either the police or County Court coerced him into accepting the plea (see People v Mason, 56 A.D.3d 1201, 1202 [4th Dept 2008], lv denied 11 N.Y.3d 927 [2009]).

Defendant further contends that County Court failed, at sentencing, to adequately inquire into statements he made during the presentence probation interview on July 26, 2017 to assure that his plea was knowing and voluntary. During the probation interview, defendant asserted that he had engaged in consensual sexual intercourse with the victim, who he claimed had fabricated the charge to "get rid" of him. Correspondingly, he recanted the confessions made to the police officers. At the commencement of the sentencing proceeding on August 17, 2017, the court confirmed that defendant's attorney had received a copy of the presentence report and then inquired as to whether there were "any errors or omissions [in the report] you want to note for the record." Defendant's attorney responded "[n]one." The prosecutor then stated that the presentence report reflected the People's concerns that defendant "has refused to accept responsibility" and "blames the true victim" despite his guilty plea. When the court inquired whether defense counsel had anything to say "on behalf of your client," counsel responded that he had "nothing to say except to the extent that so long as what the People have put on the record doesn't affect the agreement." For his part defendant declined to make a statement. We conclude that County Court did not err by imposing sentence without any further inquiry (see People v Sims, 41 N.Y.3d 995, 996 [2024]; People v Patterson, 224 A.D.3d 994, 995-996 [3d Dept 2024], lv denied 41 N.Y.3d 985 [2024]; People v Lomack, 217 A.D.3d 1281, 1282-1283 [3d Dept 2023], lv denied 40 N.Y.3d 951 [2023]; People v Clark, 209 A.D.3d 1063,...