People v. Gonyea

178 N.Y.S.3d 814

The PEOPLE of the State of New York, Respondent,

v.Kevin GONYEA, Appellant.

110745, 113254

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

Calendar Date: October 12, 2022

Decided and Entered: December 1, 2022

Marlene O. Tuczinski, Chatham, for appellant.

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

Before: Lynch, J.P., Aarons, Reynolds Fitzgerald, Fisher and McShan, JJ.

MEMORANDUM AND ORDER

McShan, J.

Appeals (1) from a judgment of the County Court of Washington County (Kelly S. McKeighan, J.), rendered August 10, 2018, convicting defendant upon his plea of guilty of the crimes of murder in the second degree and offering a false instrument for filing in the first degree, and (2) by permission, from an order of said court, entered December 9, 2021, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

In July 2017, the Washington County Sheriff's Office responded to a call reporting the unattended death of a 95–year–old resident (hereinafter the victim) of the Town of Fort Ann, Washington County. At the time of her death, the victim resided with defendant and his wife, who had provided care for the victim since moving in with the victim and her late husband in 2016. Following their initial investigation, law enforcement requested an autopsy on the victim, which revealed the need to further investigate the victim's cause of death. Accordingly, law enforcement questioned defendant and his wife at the Washington County Sheriff's Office, during which the wife informed investigators that defendant had told her that he had strangled the victim with a towel. The wife later led the officers to the location where she had hidden the towel at defendant's behest.

Thereafter, defendant and the wife were jointly charged by a 15–count indictment which, in relevant part, charged defendant with the crimes of murder in the second degree (count 1), tampering with physical evidence (count 2), welfare fraud (count 6) and offering a false instrument for filing in the first degree (counts 8, 10, 12 and 14). Defendant and the People eventually came to a plea agreement that required defendant to provide sworn testimony inculpating other family members in the victim's murder. In exchange, defendant would plead guilty to the crimes of murder in the second degree and one count of offering a false instrument for filing in the first degree and waive his right to appeal in exchange for a prison sentence of 15 years to life for murder in the second degree and a lesser concurrent prison term for the other crime. Defendant thereafter provided the agreed-upon sworn testimony, during which he admitted to killing the victim but blamed his action on the influence of various family members. Two days after providing the sworn testimony, defendant pleaded guilty, waived his right to appeal and was sentenced in accordance with the plea agreement. Subsequently, defendant moved, pursuant to CPL 440.10, to vacate the judgment based on the ineffective assistance of counsel, and County Court denied the motion without a hearing. Defendant appeals from the judgment of conviction and, with this Court's permission, from the order denying his postconviction motion.

Initially, defendant contends that the evidence before the grand jury concerning count 1 of the indictment was primarily based upon inadmissible hearsay and that the remaining evidence presented failed to support the People's theory of guilt. These arguments, however, are directed toward the sufficiency of the grand jury evidence and are therefore precluded by his guilty plea (see People v. Torres, 199 A.D.3d 1076, 1077, 156 N.Y.S.3d 565 [3d Dept. 2021], lv denied 37 N.Y.3d 1165, 160 N.Y.S.3d 717, 181 N.E.3d 1145 [2022] ; People v. Mercado, 188 A.D.3d 1418, 1419, 136 N.Y.S.3d 185 [3d Dept. 2020] ). Further, while defendant's contention that his guilty plea was involuntary based upon the ineffective assistance of counsel survives his plea and unchallenged appeal waiver, it is nevertheless unpreserved in the absence of an appropriate postallocution motion (see CPL 220.60[3] ; People v. Devins, 206 A.D.3d 1365, 1366–1367, 168 N.Y.S.3d 898 [3d Dept. 2022] ; People v. Botts, 191 A.D.3d 1044, 1045, 140 N.Y.S.3d 632 [3d Dept. 2021], lv denied 36 N.Y.3d 1095, 144 N.Y.S.3d 123, 167 N.E.3d 1258 [2021] ).

Turning to defendant's postconviction motion, the People concede, and we agree, that an amendment to CPL 440.10 made effective prior to County Court's determination on the motion required it to consider the entirety of defendant's claims directed toward the ineffective assistance of counsel, regardless of whether such claims were record based or concerned matters outside of the record (see L 2021, ch 501).¹ Nonetheless, although County Court erred to the extent that it may have based its denial of defendant's motion on CPL 440.10(2)(b) and (c), it also determined that defendant's nonrecord-based claims did not warrant a hearing, and otherwise addressed the merits of his record-based arguments as alternative grounds for dismissal. Accordingly, we will address the entirety of defendant's claims in the context of his appeal from the denial of his CPL 440.10 motion (see People v. Clark, 209 A.D.3d 1063, 1065–66, 175 N.Y.S.3d 751 [3d Dept. 2022] ; 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] ).

As to the merits of defendant's contentions, "[t]o establish a claim of ineffective assistance of counsel, a defendant is required to demonstrate that he or she was not provided meaningful representation and that there is an absence of strategic or other legitimate explanations for counsel's allegedly deficient conduct" ( People v. Lafountain, 200 A.D.3d 1211, 1215–1216, 157 N.Y.S.3d 628 [3d Dept. 2021] [internal quotation marks and citations omitted], lv denied 38 N.Y.3d 951, 165 N.Y.S.3d 476, 185 N.E.3d 997 [2022] ; see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ). "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. Wright, 256 A.D.2d 643, 646, 681 N.Y.S.2d 803 [3d Dept. 1998] [internal quotation marks and citations omitted], lv denied 93 N.Y.2d 880, 689 N.Y.S.2d 442, 711 N.E.2d 656 [1999] ; accord People v. See, 206 A.D.3d 1153, 1156, 168 N.Y.S.3d 743 [3d Dept. 2022] ; People v. Wood, 203 A.D.3d 1406, 1407, 164 N.Y.S.3d 727 [3d Dept. 2022], lv denied 38 N.Y.3d 1075, 171 N.Y.S.3d 435, 191 N.E.3d 387 [2022] ).

Defendant contends that his counsel's failure to pursue various pretrial hearings and to submit written arguments on his Huntley motion rendered his representation ineffective. We find such arguments are without merit, as defendant does not identify any specific incriminating statements that would have likely been suppressed, and counsel was not required to make motions that would ultimately prove futile (see People v. Johnson, 201 A.D.3d 1208, 1208–1209, 159 N.Y.S.3d 779 [3d Dept. 2022] ; People v. Barzee, 190 A.D.3d 1016, 1021, 138 N.Y.S.3d 718 [3d Dept. 2021], lv denied 36 N.Y.3d 1094, 144 N.Y.S.3d 110, 167 N.E.3d 1245 [2021] ; People v. Burns, 122 A.D.3d 1435, 1436–1437, 996 N.Y.S.2d 842 [4th Dept. 2014], lv denied 26 N.Y.3d 927, 17 N.Y.S.3d 89, 38 N.E.3d 835 [2015] ). Further, the record reveals that the Huntley motion was returnable on the same day that defendant ultimately pleaded guilty, obviating the need to submit written arguments. To this end, we find that defendant's CPL 440.10 motion and its exhibits "fail[ ] to establish that counsel lacked a legitimate or strategic reason for forgoing [the] motions," inasmuch as such actions were clearly undertaken in the context of "negotiating a very favorable plea agreement in the face of strong evidence of guilt and lengthy sentencing exposure" ( People v. Fish, 208 A.D.3d 1546, 1549, 175 N.Y.S.3d 602 [3d Dept. 2022] ; see People v. Wright, 88 A.D.3d 1154, 1156, 931 N.Y.S.2d 727 [3d Dept. 2011], lv denied 18 N.Y.3d 863, 938 N.Y.S.2d 871, 962 N.E.2d 296 [2011] ; compare People v. Carnevale, 101 A.D.3d 1375, 1380–1381, 957 N.Y.S.2d 746 [3d Dept. 2012] ).

We also reject defendant's contention that counsel failed to investigate and confer with him on several potential defenses including a potential extreme emotional disturbance defense. These claims are supported by defendant's affidavit alongside the affirmation of appellate counsel, which we find are self-serving, conclusory and contradictory to defendant's statements at his plea proceeding confirming that he had adequately discussed potential trial strategies and the strengths and weaknesses of his case with counsel and that he was satisfied with his performance (see People v. Fish, 208 A.D.3d at 1549, 175 N.Y.S.3d 602 ; People v. Marte–Feliz, 192 A.D.3d 1397, 1399, 144 N.Y.S.3d 255 [3d Dept. 2021] ; People v. Passino, 25 A.D.3d 817, 818–819, 807 N.Y.S.2d 210 [3d Dept. 2006], lv denied 6 N.Y.3d 816, 812 N.Y.S.2d 456, 845 N.E.2d 1287 [2006] ). Further, our review of the record reveals that any potential extreme emotional disturbance defense had little chance of success in light of the evidence of defendant's conduct and statements before and after the victim's death (see People v. Roche, 98 N.Y.2d 70, 77, 745 N.Y.S.2d 775, 772 N.E.2d 1133 [2002] ; People v. Schumaker, 136 A.D.3d 1369, 1372, 25 N.Y.S.3d 487 [4th Dept. 2016], lv denied 27 N.Y.3d 1075, 38 N.Y.S.3d 845, 60 N.E.3d 1211 [2016] ; People v. Coello, 129 A.D.3d 442, 443, 10 N.Y.S.3d 87 [1st Dept. 2015], lv denied 26 N.Y.3d 927, 17 N.Y.S.3d 90, 38 N.E.3d 836 [2015] ). Accordingly, we find that the decision to forgo that defense in favor of pursuing a favorable plea does not establish that the representation was deficient (...