People v. Dickerson

198 A.D.3d 1190

156 N.Y.S.3d 526

The PEOPLE of the State of New York, Respondent,

v.Raymond S. DICKERSON, Appellant.

110591, 110755, 112399

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 17, 2021

Decided and Entered: October 28, 2021

Karen A. Leahy, Cortland, for appellant.

Michael A. Korchak, District Attorney, Binghamton (Rita M. Basile of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Lynch, Clark and Pritzker, JJ.

MEMORANDUM AND ORDER

Clark, J. Appeals (1) from a judgment of the County Court of Broome County (Dooley, J.), rendered June 28, 2018, convicting defendant upon his plea of guilty of the crime of unlawful manufacture of methamphetamine in the third degree, (2) from a judgment of said court, rendered October 12, 2018, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a controlled substance in the second degree, and (3) by permission, from an order of said court, entered July 1, 2020, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgments of conviction, without a hearing.

In March 2018, defendant pleaded guilty as charged in a one-count indictment (hereinafter the first indictment) to unlawful manufacture of methamphetamine in the third degree, and executed a written waiver of appeal. Defendant was promised a sentence of five years of probation in exchange for his guilty plea and, pending sentencing, he was released on bail. In May 2018, based upon defendant's conduct and resulting arrest in April 2018, defendant was indicted on the charges of criminal possession of a controlled substance in the second degree, unlawful manufacture of methamphetamine in the second degree, unlawful disposal of methamphetamine laboratory material and tampering with physical evidence (hereinafter the second indictment). County Court determined that it was not bound by the plea agreement entered in the first indictment and sentenced defendant, as an acknowledged second felony offender, to a prison term of three years, followed by two years of postrelease supervision.

With regard to the second indictment, County Court issued a decision on defendant's omnibus motion which, among other things, denied his motion to suppress the physical evidence found in defendant's home upon execution of a search warrant. Following certain pretrial hearings, defendant proceeded to trial, at which a State Police investigator testified to the evidence seized from defendant's residence, including fluid taken from the p-trap in the kitchen sink drain. A forensic scientist who analyzed that fluid testified that the fluid contained methamphetamine and had an aggregate weight in excess of two ounces. At the close of the People's proof, defense counsel unsuccessfully moved for dismissal of count 1 of the second indictment charging criminal possession of a controlled substance in the second degree, arguing that the People had failed to prove that the aggregate weight of the fluid exceeded two ounces because extraneous foreign matter was also in the p-trap. Defendant thereafter pleaded guilty to the reduced crime of attempted criminal possession of a controlled substance in the second degree in satisfaction of all charges in the second indictment, and executed a written waiver of appeal. In accordance with the terms of the plea agreement, defendant was sentenced, as an acknowledged second felony offender, to a prison term of eight years, followed by five years of postrelease supervision, to run concurrently with the sentence imposed under the first indictment.

Defendant thereafter moved to vacate both judgments of conviction pursuant to CPL 440.10. As to the first indictment, defendant asserted that his guilty plea was not knowing, voluntary and intelligent and, as to the second indictment, he alleged that he had been denied the effective assistance of counsel at trial. County Court denied the motion, without a hearing. Defendant appeals from both judgments and, with permission, from the order denying his CPL 440.10 motion.

Defendant contends that his guilty plea to the sole count in the first indictment was not knowing, voluntary and intelligent in that the indictment did not specify what laboratory equipment and precursors, chemical reagents or solvents he was accused of possessing. He relatedly argues that the People's response to his bill of particulars was inadequate because it failed to provide this information, rendering his plea unknowing. The record reflects that defense counsel requested discovery and a bill of particulars seeking, among other things, this information (see Penal Law § 220.73[1] ). The People's response contained some of the requested information, but did not specify the items of laboratory equipment or the precursors, chemical reagents or solvents that defendant allegedly possessed. Defendant thereafter filed an omnibus motion again seeking, among other relief, discovery and an order directing the People to provide a further bill of particulars, arguing that the People had failed to substantively answer the first request for a bill of particulars. However, defendant pleaded guilty before the People responded to that motion.

Defendant's primary challenge – to the voluntariness of his plea – survives his unchallenged waiver of appeal but is unpreserved for our review as the record does not reflect that he made a postallocution motion to withdraw his guilty plea on this ground, despite ample opportunity to do so (see CPL 220.60[3] ; People v. Conceicao, 26 N.Y.3d 375, 381–382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ). Further, the narrow exception to the preservation requirement was not triggered (see People v. Daniels, 193 A.D.3d 1179, 1180, 146 N.Y.S.3d 680 [2021] ; People v. Botts, 191 A.D.3d 1044, 1045, 140 N.Y.S.3d 632 [2021], lv denied 36 N.Y.3d 1095, 144 N.Y.S.3d 123, 167 N.E.3d 1258 [2021] ). Were we to address this claim despite the lack of preservation, we would find that defendant elected to plead guilty in exchange for the promised sentence and to forgo his pending motions and, as such, made a "knowing, voluntary and intelligent choice among alternative courses of action" ( People v. Conceicao, 26 N.Y.3d at 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [internal quotation marks and citation omitted]).

Defendant's further challenge to the sufficiency of the factual allegations in the first indictment, and to alleged deficiencies in the People's response to his bill of particulars, are nonjurisdictional defects that were waived by his guilty plea and waiver of appeal (see People v. Guerrero, 28 N.Y.3d 110, 115–116, 42 N.Y.S.3d 80, 65 N.E.3d 51 [2016] ; People v. Williams, 189 A.D.3d 1978, 1981, 138 N.Y.S.3d 690 [2020] ; People v. Seymore, 188 A.D.3d 1767, 1768, 135 N.Y.S.3d 745 [2020], lv denied 36 N.Y.3d 1100, 144 N.Y.S.3d 126, 167 N.E.3d 1261 [2021] ; People v. Contento, 146 A.D.2d 959, 961, 537 N.Y.S.2d 88 [1989] ). Defendant's challenge to the factual sufficiency of the plea allocution is similarly precluded by the waiver of appeal (see People v. Apelles, 185 A.D.3d 1298, 1299, 127 N.Y.S.3d 652 [2020], lv denied 35 N.Y.3d 1092, 131 N.Y.S.3d 287, 155 N.E.3d 780 [2020] ). Contrary to defendant's claim, the first indictment specifically cited to Penal Law § 220.73(1), charged all of the elements of the crime and alleged acts that constitute a crime; thus, it was not defective (see ...