People v. Johnson

194 A.D.3d 1267

147 N.Y.S.3d 258

The PEOPLE of the State of New York, Respondent,

v.Robert JOHNSON, Appellant.

111148, 111892

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

Calendar Date: April 22, 2021

Decided and Entered: May 20, 2021

Todd G. Monahan, Schenectady, for appellant.

David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Lynch and Colangelo, JJ.

MEMORANDUM AND ORDER

Lynch, J.

Appeals (1) from a judgment of the County Court of Ulster County (Williams, J.), rendered February 7, 2019, convicting defendant upon his plea of guilty of the crime of attempted assault in the second degree, and (2) by permission, from an order of said court, entered October 15, 2019, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Defendant was indicted and charged with one count of assault in the second degree. The charge stemmed from an incident wherein defendant threw a mixture of bleach and water into the face of a coworker. Pursuant to a negotiated plea agreement, defendant pleaded guilty to an amended indictment charging him with attempted assault in the second degree with the understanding that he would be sentenced – as a second felony offender – to a prison term of 2 to 4 years. The plea agreement also required defendant to waive his right to appeal. At sentencing, defendant asked for leniency, and his comments, as well as the statements that he made to the Probation Department, prompted County Court to briefly adjourn the matter in order to ascertain whether defendant was raising any defenses to the crime. In response to County Court's subsequent inquiry, defendant repeatedly assured the court that he had discussed any potential defenses with counsel and had made a knowing decision not to pursue such defenses. County Court then sentenced defendant to the agreed-upon term of imprisonment.

Defendant thereafter filed a pro se motion to vacate the judgment of conviction pursuant to CPL 440.10 asserting, insofar as is relevant here, that he was denied the effective assistance of counsel. The People opposed the requested relief, and County Court denied defendant's motion without a hearing. Defendant appeals from the judgment of conviction and, by permission, from the order denying his CPL 440.10 motion.

Defendant, as so limited by his brief, argues – both upon his direct appeal from the judgment of conviction and with respect to his appeal from the denial of his CPL 440.10 motion – that he was denied the effective assistance of counsel, which, in turn, rendered his plea involuntary. Specifically, defendant cites counsel's failure to challenge the sufficiency of the evidence before the grand jury, make a timely motion to dismiss the indictment and/or explore a potential justification defense, and further asserts that counsel pressured him to plead guilty.

As County Court aptly observed, defense counsel's failure to challenge the sufficiency of the evidence before the grand jury and to make a timely motion to dismiss the indictment are not the proper subjects of a CPL 440.10 motion, as such claims are based on facts that either were sufficiently apparent from the face of the record or – through the exercise of defendant's due diligence – could have been readily made to appear upon the record in a manner that would have permitted adequate appellate review upon defendant's direct appeal (see CPL 440.10[2][b] ; [3][a]; People v. Spradlin, 188 A.D.3d 1454, 1460, 136 N.Y.S.3d 517 [2020] ). In this regard, "[t]o the extent that defendant's ineffective assistance of counsel claim impacts upon the voluntariness of his plea, such claim survives his unchallenged appeal waiver but is unpreserved for our review in the absence of an appropriate postallocution motion" ( People v. Stanley, 189 A.D.3d 1818, 1818, 136 N.Y.S.3d 569 [2020] ; see CPL 220.60[3] ; People v. Cole, 166 A.D.3d 1219, 1219, 86 N.Y.S.3d 808 [2018], lv denied 33 N.Y.3d 946, 100 N.Y.S.3d 171, 123 N.E.3d 830 [2019] ). The narrow exception to the preservation requirement is inapplicable, "as defendant did not make any statements during the plea colloquy that were inconsistent with his guilt or otherwise called into question the voluntariness of his plea" ( People v. Crossley, 191 A.D.3d 1046, 1047, 137 N.Y.S.3d 746 [2021] ; People v. Stanley, 189 A.D.3d at 1818, 136 N.Y.S.3d 569 ).

As for the balance of defendant's ineffective assistance of counsel claim, "a court may deny a [ CPL 440.10 ] 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 and there is no...