People v. James

2023 NY Slip Op 02145

The People of the State of New York, Respondent, v. Kyle James, Appellant.

Nos. 112387, 109767

Supreme Court of New York, Third Department

April 27, 2023

Calendar Date:February 23, 2023

Adam W. Toraya, Albany, for appellant, and appellant pro se.

Brian P. Conaty, Acting District Attorney, Monticello (Danielle K Blackaby of counsel), for respondent.

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

Fisher, J.

Appeals (1) from a judgment of the County Court of Sullivan County (Michael F. McGuire, J.), rendered August 4, 2017, convicting defendant upon his plea of guilty of the crimes of criminal possession of a weapon in the second degree and criminal possession of a controlled substance in the third degree, and (2) by permission, from an order of said court (Bryan E Rounds, J.), entered June 12, 2020, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

In January 2016, the police responded to a call that a domestic incident involving a man with a handgun and drugs was taking place at an apartment complex. When the police arrived at the scene, they encountered a woman breaking a first-floor apartment window and screaming that a man inside had a gun. According to the police, when called outside by officers, defendant and another man exited the apartment and denied having a handgun. With defendant's oral and written consent, the police searched his apartment and discovered a handgun and drugs. Defendant was charged by a 10-count indictment with various weapon and drug-related offenses. He ultimately pleaded guilty to criminal possession of a weapon in the second degree and criminal possession of a controlled substance in the third degree in full satisfaction of the charges against him and agreed to waive his right to appeal. In accordance with the terms of the plea agreement, County Court (McGuire, J.) sentenced defendant, as a second felony offender, to an aggregate prison term of 17 years to be followed by eight years of postrelease supervision. Thereafter, defendant moved to vacate his judgment of conviction contending, among other things, that he had been deprived of the effective assistance of counsel, a motion opposed by the People. County Court (Rounds, J.) denied defendant's motion, without a hearing. Defendant appeals from the judgment of conviction and, by permission, the denial of his CPL 440.10 motion.

As the People concede, and our review of the record confirms, defendant's waiver of the right to appeal is invalid (see People v Brewster, 194 A.D.3d 1266, 1267 [3d Dept 2021], lv denied 37 N.Y.3d 970 [2021]). Turning to his contentions, defendant argues that his guilty plea was not entered knowingly, voluntarily and intelligently. However, this claim is unpreserved for our review as the record does not reflect that defendant made an appropriate postallocution motion to withdraw his guilty plea despite having an opportunity to do so prior to sentencing (see People v Rubert, 206 A.D.3d 1378, 1380 [3d Dept 2022], lv denied 39 N.Y.3d 942 [2022]; People v Burnham, 206 A.D.3d 1368, 1369 [3d Dept 2022], lv denied 38 N.Y.3d 1187 [2022]), and this case does not fall within the narrow exception to the preservation rule (see People v Duckett, 205 A.D.3d 1229, 1230 [3d Dept 2022], lv denied 39 N.Y.3d 939 [2022]). To the extent that defendant initially stated during the plea colloquy that he was not satisfied with his attorney's services, therefore undermining the voluntariness of his plea, County Court (McGuire, J.) made the appropriate inquiry and twice clarified that defendant was specifically not satisfied with the timing of his plea and the outcome ^[1] - not his attorney's legal services (see People v Hardie, 211 A.D.3d 1418, 1419 [3d Dept 2022], lv denied ___ N.Y.3d ___ [Mar. 29, 2023]; People v See, 206 A.D.3d 1153, 1155 [3d Dept 2022], lv denied 39 N.Y.3d 1075 [2023]; People v Cafarelli, 193 A.D.3d 1350, 1350 [4th Dept 2021], lv denied 37 N.Y.3d 990 [2021]). The record further reflects that defendant affirmed that he had sufficient opportunity to confer with counsel and understood the consequences of entering a guilty plea, which he was not being forced or coerced into entering (see People v Hawkins, 207 A.D.3d 814, 815-816 [3d Dept 2022]).Accordingly, "[h]aving failed to express, in any way, dissatisfaction with the court's remedial action, defendant has waived any further challenge to the allocution, and thus no issue is preserved for our review" (People v Williams, 203 A.D.3d 1398, 1399 [3d Dept 2022] [internal quotation marks and citations omitted], lv denied 38 N.Y.3d 1036 [2022]; see People v Hardie, 211 A.D.3d at 1419).

Defendant also contends that he was deprived of the effective assistance of counsel, and that County Court (Rounds, J.) erred in denying his CPL 440.10 motion without an evidentiary hearing. We disagree. "To demonstrate the existence of questions of fact requiring a hearing, a defendant is obliged to show that the nonrecord facts sought to be established are material and would entitle him or her to relief, and a court may deny a vacatur motion without a hearing if it is based on the defendant's self-serving claims that are contradicted by the record or unsupported by any other evidence" (People v Miles, 205 A.D.3d 1222, 1224 [3d Dept 2022] [internal quotation marks, brackets and citations omitted], lv denied 38 N.Y.3d 1189 [2022]; see People v Gillespie, 205 A.D.3d 1212, 1216 [3d Dept 2022], lv denied 39 N.Y.3d 1072 [2023]; see also CPL 440.30 [4] [d]). "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 upon the apparent effectiveness of counsel" (People v Burnell, 208 A.D.3d 1554, 1556 [3d Dept 2022] [internal quotation marks and citations omitted], lv denied 39 N.Y.3d 961 [2022]).

Here defendant's contentions are self-serving and belied by the record. Specifically, defendant's allegation that he wanted to proceed to trial but his first counsel refused to do so is directly contradicted by defendant's statements made during the plea colloquy and at sentencing, wherein defendant indicated his desire to have taken the first plea offer rather than continuing with his case. Defendant's further claim that his counsel failed to investigate who was the owner of the house where the handgun and drugs were found is not material to his defense, as defendant had authority and voluntarily consented to the search of his apartment (see People v Brinkley, 174 A.D.3d 1159, 1163-1164 [3d Dept 2019], lv denied 34 N.Y.3d 979 [2019]; People v Robinson, 156 A.D.3d 1123, 1129 [3d Dept 2017], lv denied 30 N.Y.3d 1119 [2018]), and the record otherwise demonstrates that he admitted that he owned and possessed the handgun and drugs (see generally People v Davis, 167 A.D.3d 1330, 1331 [3d Dept 2018]). Moreover, the record indicates that defendant's counsel took an extraordinary step in contacting the Chief Judge of the State of New York to obtain an accommodation for defendant as it related to the interplay between his state and federal cases. Defendant's attorneys also made appropriate motions, competently examined and cross-examined witnesses at various...