People v. Hilliard

184 N.Y.S.3d 638 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Tyquan S. HILLIARD, Appellant.

111984

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

Calendar Date: February 23, 2023

Decided and Entered: March 30, 2023

Alexander W. Bloomstein, Hillsdale, for appellant.

Brian P. Conaty, Acting District Attorney, Monticello (Howard Block of counsel), for respondent.

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

MEMORANDUM AND ORDER

Lynch, J.P.

Appeal from a judgment of the Supreme Court (Stephan G. Schick, J.), rendered April 12, 2019 in Sullivan County, convicting defendant upon his plea of guilty of the crimes of robbery in the second degree and assault in the second degree.

Defendant and a codefendant were charged in a 14–count indictment with various crimes, including four counts of robbery in the second degree and two counts of assault in the second degree. The charges stemmed from allegations that they entered a cell phone store displaying what appeared to be a firearm, ordered the employees and customers into the back room of the store, bound them and stole property from the store and a customer. It was further alleged that a police officer was injured while pursuing defendant and the codefendant after they fled from the store in an automobile. In satisfaction of the foregoing, defendant pleaded guilty to one count of robbery in the second degree and one count of assault in the second degree and purportedly waived the right to appeal. Prior to sentencing, defendant moved pro se to withdraw his plea based in part upon ineffective assistance of counsel, and he was assigned new counsel. At the sentencing hearing, defendant withdrew the motion to withdraw his plea and, pursuant to the terms of the plea agreement, Supreme Court sentenced defendant, as a second violent felony offender, to a prison term of 10½ years on the robbery conviction and a lesser concurrent sentence on the assault conviction, followed by five years of postrelease supervision. Defendant appeals.

We affirm. Initially, the People concede, and our review of the record confirms, that defendant's waiver of the right to appeal is invalid as the written waiver is overly broad and Supreme Court did not ensure that defendant understood the distinction that some appellate review survived (see People v. Jones, 199 A.D.3d 1069, 1069–1070, 156 N.Y.S.3d 552 [3d Dept. 2021], lv denied 38 N.Y.3d 928, 164 N.Y.S.3d 31, 184 N.E.3d 852 [3d Dept. 2022] ; People v. Barrales, 179 A.D.3d 1313, 1314–1315, 118 N.Y.S.3d 263 [3d Dept. 2020] ). Nevertheless, defendant's challenges to the voluntariness of his plea and the factual sufficiency of the plea allocution are unpreserved for our review "given that he withdrew his motion to withdraw his guilty plea at sentencing and failed to move to vacate the judgment of conviction" ( People v. Smith, 155 A.D.3d 1244, 1245, 65 N.Y.S.3d 580 [3d Dept. 2017] [internal quotation marks and citation omitted]; see People v. Jones, 114 A.D.3d 1080, 1081, 981 N.Y.S.2d 465 [3d Dept. 2014], lv denied 24 N.Y.3d 961, 996 N.Y.S.2d 221, 20 N.E.3d 1001 [2014] ). Moreover, defendant did not make any statements that were inconsistent with his guilt, negated an element of the crime or cast doubt about the voluntariness of his plea so as to trigger the narrow exception to the preservation requirement (see People v. West, 210 A.D.3d 1194, 1195, 178 N.Y.S.3d 266 [3d Dept. 2022] ; lv denied 39 N.Y.3d 1080, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [Feb. 22, 2023] People v. Haas, 206 A.D.3d 1386, 1386, 168 N.Y.S.3d 917 [3d Dept. 2022], lv denied 38 N.Y.3d 1188, 176 N.Y.S.3d 218, 197 N.E.3d 498 [2022] ). Contrary to defendant's contention, his admission during the plea colloquy – that he was intentionally preventing a police officer from arresting him by fleeing and that the officer was injured while in the course of pursuing him – satisfied the causation element of assault in the second degree (see Penal Law § 120.05[3] ; People v. Iovino, 149 A.D.3d 1350, 1352, 54 N.Y.S.3d 171 [3d Dept. 2017], lv denied 30 N.Y.3d 950, 67 N.Y.S.3d 134, 89 N.E.3d 524 [2017] ; People v. Cipollina, 94 A.D.3d 1549, 1550, 943 N.Y.S.2d 710 [4th Dept. 2012], lv denied 19 N.Y.3d 971, 950 N.Y.S.2d 354, 973 N.E.2d 764 [2012] ; People v. Chandler, 94 A.D.3d 1155, 1156, 941 N.Y.S.2d 346 [3d Dept. 2012], lv denied 19 N.Y.3d 971, 950 N.Y.S.2d 354, 973 N.E.2d 764 [2012] ).

Defendant's claim of ineffective assistance of counsel – to the extent that it impacts the voluntariness of his plea – is similarly unpreserved for the lack of an appropriate postallocution motion (see People v. Loya, 204 A.D.3d 1255, 1256, 166 N.Y.S.3d 752 [3d Dept. 2022], lv denied 38 N.Y.3d 1072, 171 N.Y.S.3d 444, 191 N.E.3d 396 [2022] ; People v. Rhodes, 203 A.D.3d 1316, 1318, 163 N.Y.S.3d 329 [3d Dept. 2022] ). To the extent that the alleged inadequacies are...