People v. Drake

205 N.Y.S.3d 789

224 A.D.3d 1138

The PEOPLE of the State of New York, Respondent,

v.Cornelius DRAKE, Appellant.

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

Calendar Date: January 18, 2024

Decided and Entered: February 29, 2024

Cornelius Drake, Woodbourne, appellant pro se.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Lynch, McShan and Mackey, JJ.

MEMORANDUM AND ORDER

McShan, J.

Appeals (1) from a judgment of the County Court of Schenectady County (Matthew J. Sypniewski, J.), rendered April 7, 2017, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree, (2) by permission, from an order of said court (Mark J. Caruso, J.), entered April 13, 2022, which denied defendant’s motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing, and (3) from an order of said court, entered November 9, 2022, which partially denied defendant’s motion to, among other things, reconstruct the record.

In February 2016, police officers obtained a warrant to search defendant’s residence in the City of Schenectady. The warrant authorized police to search for drugs, money from the sale of drugs and firearms, and was supported by the affidavits of multiple police officers, who averred that they observed defendant walk to and from the residence before and after selling crack cocaine to an undercover officer. During the search, police located, among other things, a safe containing a loaded handgun.

Defendant was thereafter charged in a 14–count indictment with various weapons and drug-related offenses. Defendant engaged in motion practice through his attorneys, including requesting a Huntley hearing. On multiple occasions, defendant expressed that he was considering proceeding in a self-represented capacity.¹ On the day of the scheduled Huntley hearing, defendant waived the healing and pleaded guilty to count 14 of the indictment – criminal possession of a weapon in the second degree (Penal Law § 265.03[3]) – in satisfaction of the indictment. Prior to sentencing, defendant made a pro se motion to withdraw his plea based upon his assertion that his counsel was ineffective and coerced him into entering the plea. County Court (Sypniewski, J.) denied the motion and, in accordance with the terms of the plea agreement, sentenced defendant, as a second felony offender, to a prison term of 10 years to be followed by five years of postrelease supervision.

Defendant, again in a self-represented capacity, moved to vacate his conviction pursuant to CPL 440.10, arguing that he was denied the effective assistance of counsel because his attorneys were in possession of evidence that the search warrant was improper but refused to investigate such evidence and withheld it from County Court, thereby rendering his plea involuntary. County Court (Caruso, J.) denied defendant’s motion without a hearing, finding that defendant’s claims were based solely on his own conclusory affidavits and, in any event, were meritless. Defendant thereafter moved to reconstruct the record on appeal, claiming that the DVD exhibits that he submitted in support of his CPL 440.10 motion should be included in the record. County Court granted the motion in part, ordering that all materials submitted in support of the CPL 440.10 motion be included in the record on appeal. Defendant now appeals from the judgment of conviction, the denial of his CPL 440.10 motion, by permission, and the order pertaining to his request for a reconstruction hearing.

[1] Initially, we note that as a condition of his plea, defendant purported to waive his right to appeal both orally and in writing. However, the People concede that the waiver of the right to appeal is invalid and do not seek to enforce it against his plea-related claims on appeal (see People v. Tucker, 222 A.D.3d 1038, 1039, 200 N.Y.S.3d 798 [3d Dept. 2023]; People v. Booth, 221 A.D.3d 1283, 1284, 200 N.Y.S.3d 501 [3d Dept. 2023]; People v. Faublas, 216 A.D.3d 1358, 1358, 189 N.Y.S.3d 828 [3d Dept. 2023], lv denied 40 N.Y.3d 934, 194 N.Y.S.3d 756, 215 N.E.3d 1197 [2023]). Further, we find that defendant’s challenge to the validity of his plea is preserved by virtue of his request to withdraw his plea prior to sentencing. Although defendant was represented by counsel at the time, a condition that would normally foreclose his right to make such a motion (see People v. Rodriguez, 95 N.Y.2d 497, 501, 719 N.Y.S.2d 208, 741 N.E.2d 882 [2000]; People v. Carroll, 172 A.D.3d 1821, 1822, 99 N.Y.S.3d 520 [3d Dept. 2019], lv denied 34 N.Y.3d 929, 109 N.Y.S.3d 743, 133 N.E.3d 448 [2019]), County Court (Sypniewski, J.) exercised its discretion and expressly considered and decided the request, thus rendering his challenge preserved (see CPL 470.05[2]; People v. Watts, 215 A.D.3d 1170, 1174, 187 N.Y.S.3d 848 [3d Dept. 2023]; People v. Session, 206 A.D.3d 1678, 1679, 169 N.Y.S.3d 760 [4th Dept. 2022]).

[2–5] Nevertheless, we find no merit to defendant’s challenge to the voluntariness of his plea. The record reflects that County Court went through a lengthy colloquy prior to defendant’s plea allocution, advising defendant of the terms and conditions of his plea, including the surrender of his right to pursue the previously-waived Huntley hearing as well as his various trial-related rights, and further confirming that defendant had sufficient time to discuss the consequences of his plea with counsel (see People v. Atkins, 222 A.D.3d 1043, 1044, 201 N.Y.S.3d 560 [3d Dept. 2023]; People v. Howard, 190 A.D.3d 1108, 1109, 138 N.Y.S.3d 751 [3d Dept. 2021]; People v. Burnell, 183 A.D.3d 931, 932–933, 123 N.Y.S.3d 728 [3d Dept. 2020], lv. denied 35 N.Y.3d 1043, 127 N.Y.S.3d 827, 151 N.E.3d 508 [2020]).² Altogether, upon our review of the record, we are satisfied that defendant’s guilty plea was a "knowing, voluntary and intelligent choice among alternative courses of action" (People v. Atutis, 214 A.D.3d 1264, 1266, 184 N.Y.S.3d 642 [3d Dept. 2023] [internal quotation marks and citation omitted]; see People v. Arlt, 219 A.D.3d 986, 989, 194 N.Y.S.3d 802 [3d Dept. 2023], lv denied 40 N.Y.3d 996, 197 N.Y.S.3d 119, 219 N.E.3d 880 [2023]; People v. Graham, 214 A.D.3d 1256, 1257, 184 N.Y.S.3d 635 [3d Dept. 2023], lv denied 40 N.Y.3d 934, 194 N.Y.S.3d 760, 215 N.E.3d 1201 [2023]; People v. LaPierre, 195 A.D.3d 1301, 1303–1304, 150 N.Y.S.3d 810 [3d Dept. 2021]).³ Defendant’s related contention that his counsel coerced him by providing "help" during the colloquy lacks merit, as the court provided several opportunities for defendant to confer with counsel during the proceeding and defendant made no statement that suggested any hesitancy in entering the plea or otherwise undermined the voluntariness of his decision to do so (see People v. Taylor, 212 A.D.3d 891, 894, 180 N.Y.S.3d 729 [3d Dept. 2023], lv denied 39 N.Y.3d 1114, 186 N.Y.S.3d 832, 208 N.E.3d 60 [2023]; compare People v. James, 215 A.D.3d 1176, 1177, 187 N.Y.S.3d 858 [3d Dept. 2023], lv denied 40 N.Y.3d 935, 194 N.Y.S.3d 750, 215 N.E.3d 1191 [2023]).

[6–8] Turning to defendant’s claims of ineffective assistance of counsel, defendant raises numerous arguments premised on his assertion that both his original as well as the later-appointed counsel who represented him throughout the various proceedings prior to sentencing, among other things, failed to adequately investigate and raise appropriate challenges to the validity of the search warrant and the manner in which he was arrested. Inasmuch as defendant’s claim contains both record-based and nonrecord-based allegations, "they [should] be addressed together in their entirety in the context of defendant’s appeal from the denial of his CPL 440.10 motion" (People v. White–Span, 182 A.D.3d 909, 914, 122 N.Y.S.3d 818 [3d Dept. 2020], lv denied 35 N.Y.3d 1071, 129 N.Y.S.3d 381, 152 N.E.3d 1183 [2020]; see People v. Gonyea, 211 A.D.3d 1102, 1104, 178 N.Y.S.3d 814 [3d Dept. 2022], lv denied 39 N.Y.3d 1110, 186 N.Y.S.3d 847, 208 N.E.3d 75 [2023]). In assessing the merits of his claim, we note that "[i]n 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 upon the apparent effectiveness of counsel" (People v. Agueda, 202 A.D.3d 1153, 1156, 160 N.Y.S.3d 489 [3d Dept. 2022] [internal quotation marks and citations omitted], lv denied 38 N.Y.3d 1031, 169 N.Y.S.3d 209, 189 N.E.3d 316 [2022]).

[9] The record reflects that each of defendant’s counsel had myriad conversations with defendant concerning his insistence on challenging certain claims pertaining to, among other things, the sufficiency of evidence supporting the search warrant and probable cause for his arrest. Accordingly, defendant’s argument amounts to little more than a strategic disagreement with counsel rather than a valid argument as to ineffectiveness (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988]; People v. Lewis, 138 A.D.3d 1346, 1349, 30 N.Y.S.3d 387 [3d Dept. 2016], lv. denied 28 N.Y.3d 1073, 47 N.Y.S.3d 232, 69 N.E.3d 1028 [2016]). Defendant’s contentions aimed at the purported failures of counsel to adequately investigate the merits of his arguments are supported by nothing beyond his own unsworn conclusory claims (see People v. Johnson, 221 A.D.3d 1172, 1176, 200 N.Y.S.3d 489 [3d Dept. 2023]; People v. Vittengl, 203 A.D.3d 1390, 1393, 163 N.Y.S.3d 715 [3d Dept. 2022]). In any event, defendant’s contentions directed at the legality of the search warrant and his arrest are without merit (see People v. Lee, 205 A.D.2d 708, 709, 613 N.Y.S.2d 675 [2d Dept. 1994], lv. denied 84 N.Y.2d 828, 617 N.Y.S.2d 148, 641 N.E.2d 169 [1994]; People v. Battista, 197 A.D.2d 486, 487, 602 N.Y.S.2d 865 [1st Dept. 1993], lv. denied, 82 N.Y.2d 891, 610 N.Y.S.2d 158, 632 N.E.2d 468 [1993]; People v....