People v. Johnson

221 A.D.3d 1172

200 N.Y.S.3d 489

The PEOPLE of the State of New York, Respondent,

v.Taylor T. JOHNSON, Appellant.

110489, 113004, 113549

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

Calendar Date: October 18, 2023

Decided and Entered: November 16, 2023

Brian M. Callahan, Albany, for appellant, and appellant pro se.

P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), for respondent.

Before: Clark, J.P., Aarons, Pritzker, Ceresia and Fisher, JJ.

MEMORANDUM AND ORDER

Pritzker, J. Appeals (1) from a judgment of the County Court of Albany County (William A. Carter, J.), rendered April 3, 2018, 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 (Andra Ackerman, J.), dated July 27, 2021, which denied defendant's motion pursuant to CPL 440.20 to set aside the sentence, without a hearing, and (3) by permission, from an order of said court (Andra Ackerman, J.), dated June 22, 2022, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Defendant was charged by felony complaints with criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree (two counts), criminal possession of a controlled substance in the third degree (two counts) and criminally using drug paraphernalia in the second degree when two loaded handguns and cocaine were found during the execution of a search warrant at his residence on February 14, 2018. Defendant thereafter waived indictment and agreed to be prosecuted by a superior court information charging him with one count of criminal possession of a weapon in the second degree, with the understanding that he would be sentenced to a prison term of six years, to be followed by five years of postrelease supervision. The plea agreement also required defendant to waive his right to appeal. Defendant pleaded guilty as contemplated by the plea agreement and County Court (Carter, J.) imposed the agreed-upon sentence, as an acknowledged second felony offender.¹

Defendant subsequently moved, pro se, to set aside his sentence pursuant to CPL 440.20, which the People opposed, and County Court (Ackerman, J.) denied by order dated July 27, 2021. Defendant later moved to vacate the judgment of conviction pursuant to CPL 440.10, opposed by the People, and County Court denied the motion in June 2022, without a hearing. Defendant appeals from the judgment of conviction and, by permission, from the orders denying his CPL article 440 motions.

Defendant contends that his plea was not voluntary, knowing or intelligent in that County Court (Carter, J.) failed to properly apprise him of a Boykin right ( Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 [1969] ), specifically his right against self-incrimination, and failed to ensure that he had conferred with counsel regarding this right. Although this claim survives defendant's unchallenged waiver of appeal (see People v. Barney, 215 A.D.3d 1137, 1139, 187 N.Y.S.3d 409 [3d Dept. 2023], lv denied 40 N.Y.3d 927, 192 N.Y.S.3d 508, 213 N.E.3d 650 [2023] ), given that he did not move to withdraw his plea despite an opportunity to do so, this issue is unpreserved for our review (see People v. Conceicao, 26 N.Y.3d 375, 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ; People v. Kimball, 213 A.D.3d 1028, 1030, 183 N.Y.S.3d 198 [3d Dept. 2023], lv denied 40 N.Y.3d 929, 192 N.Y.S.3d 518, 213 N.E.3d 661 [2023] ) and the narrow exception to the preservation requirement was not triggered (see People v. Williams, 27 N.Y.3d 212, 214, 219–223, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ; People v. Lopez, 71 N.Y.2d 662, 666–667, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ).

Defendant raises numerous claims in his pro se brief, which we have examined and found to be without merit. Although defendant is correct that the waiver of indictment did not specify the time of day that he committed the crime charged in the superior court information, this nonjurisdictional claim regarding a non-elemental omission was waived by his guilty plea (see People v. Walley, 36 N.Y.3d 967, 968, 137 N.Y.S.3d 812, 162 N.E.3d 101 [2020] ; People v. Thomas, 34 N.Y.3d 545, 568–569, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ). Defendant's challenge to the search warrant as not supported by probable cause was likewise waived by his guilty plea (see People v. Fernandez, 67 N.Y.2d 686, 688, 499 N.Y.S.2d 919, 490 N.E.2d 838 [1986] ; People v. Monk, 189 A.D.3d 1970, 1971, 138 N.Y.S.3d 700 [3d Dept. 2020], lv denied 37 N.Y.3d 958, 147 N.Y.S.3d 509, 170 N.E.3d 383 [2021] ) and, moreover, during the plea allocution defendant expressly waived any pretrial hearings or motions.² Contrary to defendant's challenge to the lawfulness of second felony offender sentencing,³ his prior felony driving while ability impaired conviction (see Vehicle and Traffic Law § 1192[4–a] ) properly served as a predicate offense upon which to adjudicate him a second felony offender (see People v. Shannon, 89 N.Y.2d 1000, 1001, 657 N.Y.S.2d 394, 679 N.E.2d 633 [1997] ; People v. Baker, 27 A.D.3d 1006, 1010, 811 N.Y.S.2d 803 [3d Dept. 2006], lv denied 7 N.Y.3d 785, 821 N.Y.S.2d 814, 854 N.E.2d 1278 [2006] ; see also Vehicle and Traffic Law § 1193[1][c] )

We now turn to the denial by County Court (Ackerman, J.) of defendant's postconviction motions. A motion pursuant to CPL 440.20 to set aside a sentence must be premised "upon the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law" ( CPL 440.20[1] ; see People v. Vanderhorst, 199 A.D.3d 119, 123, 155 N.Y.S.3d 451 [3d Dept. 2021], lv denied 37 N.Y.3d 1099, 156 N.Y.S.3d 779, 178 N.E.3d 426 [2021] ).⁴ Defendant's challenge to his sentencing as a second felony offender is premised upon the same grounds raised and rejected on his direct appeal herein, and his reliance on restrictions on guilty pleas under indictment (see CPL 220.10, 220.20 ) is misplaced given that he waived indictment. As the second felony offender sentence imposed for this class C violent felony, six years followed by five years of postrelease supervision, was lawful (see Penal Law §§ 70.02[1][b] ; 70.06[6][b]; 70.45[2]; 265.03[3]), and defendant did not allege any grounds constituting a legal basis for this motion,⁵ it was properly denied, without a hearing (see CPL 440.20[1] ; 440.30[4][a], [d]).⁶

County Court also properly denied defendant's motion to vacate the judgment of conviction pursuant to CPL 440.10(1)(h), which was premised upon the claim that he received ineffective assistance of counsel in that counsel failed to investigate the facts, research the law or develop the record prior to his plea and did not review or challenge the search warrant, the execution of which produced the evidence that led to these charges. Since "these contentions raise both record-based and nonrecord-based allegations of ineffectiveness, they will 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] ). "On a motion to vacate a judgment of conviction under CPL 440.10, a hearing is only required if the submissions show that the nonrecord facts sought to be established are material and would entitle the defendant to relief. Furthermore, 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. Dunbar, 218 A.D.3d 931, 933–934, 193 N.Y.S.3d 397 [3d Dept. 2023] [internal quotation marks and citations omitted], lv denied 40 N.Y.3d 950, 195 N.Y.S.3d 677, 217 N.E.3d 698 [2023] ).

Counsel assigned on this postconviction motion submitted an affidavit recounting that he had contacted trial counsel, who could not recall if the warrant application had been reviewed but noted that plea negotiations were difficult given that defendant violated probation at the time of these crimes; trial counsel indicated that, while it was possible he did not review the application, it may have been due to the People's wish to keep the informant's identity confidential and, as such, was a negotiating tool. Defendant's claims regarding trial counsel's representation and what counsel investigated are unsupported by any other evidence and, indeed, during the plea allocution, defendant specifically acknowledged that he had discussed the evidence and possible defenses with counsel and that he had sufficient time to confer with counsel, and he expressly waived any pretrial motions or hearings. Notably, defendant was aware that the evidence against him was procured during the execution of the search warrant and that trial counsel had not challenged the search warrant and could have raised this issue before County Court, and unjustifiably failed to do so, supporting the denial of the motion on this ground (see CPL 440.10[3][a] ). With regard to the purported failure to investigate, "defendant offered nothing aside from his own, unsworn account of defense counsel's representation, and his failure to provide any affirmation from counsel regarding those points, or an explanation for the failure to do so, warranted summary denial of that part of the motion" ( People v. Hinds, 217 A.D.3d 1138, 1142, 191 N.Y.S.3d 533 [3d Dept. 2023] [internal quotation marks and citations omitted], lv denied 40 N.Y.3d 951, 195 N.Y.S.3d 672, 217 N.E.3d 693 [2023] ). As such, defendant's conclusory claims are either unsupported by any evidence or belied by the record and, absent any showing that a hearing was needed, the court properly denied the motion without a hearing (see CPL 440.30[4][d] ).

Moreover, defendant has not demonstrated the "absence of strategic or...