People v. Kuhn

221 A.D.3d 1182

200 N.Y.S.3d 169

The PEOPLE of the State of New York, Respondent,

v.John Tyler KUHN, Appellant.

112089, CR-22-2374

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

Calendar Date: October 11, 2023

Decided and Entered: November 16, 2023

Angela Kelley, East Greenbush, for appellant.

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

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

MEMORANDUM AND ORDER

Fisher, J. Appeals (1) from a judgment of the County Court of Ulster County (Donald A. Williams, J.), rendered July 19, 2019, convicting defendant upon his plea of guilty of the crimes of aggravated vehicular assault and driving while intoxicated, and (2) by permission, from an order of said court (Bryan E. Rounds, J.), entered November 29, 2022, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

In February 2019, defendant was charged by indictment with aggravated vehicular assault, assault in the second degree (two counts) and driving while intoxicated (two counts), following a motor vehicle accident that resulted in injuries to all three of his passengers – two of whom were catastrophically and permanently injured. In full satisfaction of the indictment, defendant pleaded guilty to aggravated vehicular assault and misdemeanor driving while intoxicated, and he purportedly waived his right to appeal both orally and in writing. County Court (Williams, J.) thereafter imposed, among other things, a prison sentence of 4 to 12 years for defendant's conviction of aggravated vehicular assault and a jail sentence of one year for his conviction of driving while intoxicated, to be followed by a three-year period of conditional discharge with the condition that an ignition interlock device be installed in any vehicle owned or operated by defendant. In 2022, defendant moved to vacate the 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 in a written decision, without a hearing. Defendant appeals from the judgment of conviction and, by permission, from the order denying his CPL 440.10 motion.

Initially, we agree with defendant that his waiver of the right to appeal is invalid given the overly broad language used both by County Court (Williams, J.) and in the written appeal waiver regarding the scope of the appellate rights being relinquished (see People v. Arlt, 219 A.D.3d 986, 987, 194 N.Y.S.3d 802 [3d Dept. 2023]lv denied 40 N.Y.3d 996, 197 N.Y.S.3d 119, 219 N.E.3d 880 [2023] ; People v. Winter, 215 A.D.3d 1010, 1011–1012, 187 N.Y.S.3d 125 [3d Dept. 2023] ; People v. Blauvelt, 211 A.D.3d 1175, 1175, 180 N.Y.S.3d 328 [3d Dept. 2022] ). As such, defendant's challenge to the severity of the sentence imposed is not precluded. Nonetheless, considering the catastrophic nature of the injuries sustained by the victims of these crimes, as well as the advantageous plea that defendant received, we are unpersuaded that the agreed-upon sentence is "unduly harsh or severe" and decline defendant's invitation to reduce his sentence in the interest of justice ( CPL 470.15[6][b] ; see People v. Ferguson, 193 A.D.3d 1253, 1259, 147 N.Y.S.3d 204 [3d Dept. 2021], lv denied 37 N.Y.3d 964, 148 N.Y.S.3d 763, 171 N.E.3d 239 [2021] ; People v. Peryea, 68 A.D.3d 1144, 1147, 889 N.Y.S.2d 741 [3d Dept. 2009], lv denied 14 N.Y.3d 804, 899 N.Y.S.2d 138, 925 N.E.2d 942 [2010] ). Contrary to defendant's contention that the sentence is illegal, inasmuch as defendant was convicted of driving while intoxicated (see Vehicle and Traffic Law § 1192[3] ), the court was required to impose and lawfully ordered defendant to serve a period of conditional discharge for the purpose of installing and operating an ignition interlock device in any vehicle that he owns or operates (see Vehicle and Traffic Law § 1198[1], [2][a] ; People v. Dancy, 206 A.D.3d 823, 824, 168 N.Y.S.3d 350 [2d Dept. 2022], lv denied 38 N.Y.3d 1187, 176 N.Y.S.3d 205, 197 N.E.3d 485 [2022] ; People v. Tagiev, 70 Misc.3d 47, 53, 137 N.Y.S.3d 242 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2020], lv denied 37 N.Y.3d 960, 147 N.Y.S.3d 540, 170 N.E.3d 414 [2021] ; see also People v. Uribe, 109 A.D.3d 844, 844, 971 N.Y.S.2d 60 [2d Dept. 2013], lv denied 23 N.Y.3d 969, 988 N.Y.S.2d 576, 11 N.E.3d 726 [2014] ; People v. Flagg, 107 A.D.3d 1613, 1614, 967 N.Y.S.2d 577 [4th Dept. 2013], lv denied 22 N.Y.3d 1138, 983 N.Y.S.2d 496, 6 N.E.3d 615 [2014]).

"[D]efendant's challenge[ ] to the voluntariness of his guilty plea [is] unpreserved for our review in view of his failure to make an appropriate postallocution motion to withdraw his plea prior to sentencing, despite ample time in which to do so" ( People v. Wilcox, 218 A.D.3d 965, 965, 194 N.Y.S.3d 170 [3d Dept. 2023] ; see People v. Conceicao, 26 N.Y.3d 375, 381–382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ). This case also does not fall within the narrow exception to the preservation rule (see People v. Clark, 209 A.D.3d 1063, 1064, 175 N.Y.S.3d 751 [3d Dept. 2022], lv denied 39 N.Y.3d 1140, 188 N.Y.S.3d 439, 209 N.E.3d 1268 [2023] ; People v. Rubert, 206 A.D.3d 1378, 1380, 170 N.Y.S.3d 346 [3d Dept. 2022], lv denied 39 N.Y.3d 942, 177 N.Y.S.3d 518, 198 N.E.3d 761 [2022] ).

"Defendant's mixed claims of ineffective assistance of counsel are grounded upon matters appearing both on the record and outside the record and, therefore, they are assessed together, in totality, to determine whether he was deprived of meaningful representation" ( People v. Fish, 208 A.D.3d 1546, 1548, 175 N.Y.S.3d 602 [3d Dept. 2022] [citations omitted]). "The failure to include an affirmation from counsel, or an explanation for the failure to do so, has been held to warrant the summary denial of a defendant's postconviction motion" ( People v. Wright, 27 N.Y.3d 516, 522, 35 N.Y.S.3d 286, 54 N.E.3d 1157 [2016] [citations omitted]). Moreover, "[i]n 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. Agueda, 202 A.D.3d 1153, 1156, 160 N.Y.S.3d 489 [3d Dept. 2022] [internal quotation marks and citations omitted], lv denied 38 N.Y.3d 1031, 169 N.Y.S.3d 209, 189 N.E.3d 316 [2022] ).

Defendant's motion to vacate is supported solely by his own conclusory affidavits, and no affidavit is submitted from trial counsel. Thus, defendant's contentions concerning trial counsel's efforts to adequately investigate the charges against him and explain the terms of the plea agreement to him are unavailing, as they are supported only by defendant's self-serving affidavit (see People v. Podeswa, 205 A.D.3d 1139, 1141–1142, 167 N.Y.S.3d 640 [3d Dept. 2022], lv denied 38 N.Y.3d 1135, 172 N.Y.S.3d 857, 193 N.E.3d 522 [2022] ; People v. Vittengl, 203 A.D.3d 1390, 1393, 163 N.Y.S.3d 715 [3d Dept. 2022] ; People v. Marte–Feliz, 192 A.D.3d 1397, 1397–1398, 144 N.Y.S.3d 255 [3d Dept. 2021] ). Moreover, defendant also acknowledged during the plea allocution that he understood the parameters of the plea agreement, that he had sufficient time to discuss it with counsel and that he was satisfied with counsel's representation. Furthermore, our review of the record reveals that counsel negotiated a favorable plea agreement under these particular circumstances, especially in light of the serious charges brought against defendant (see People v. Richmond, 158 A.D.3d 980, 981, 72 N.Y.S.3d 620 [3d Dept. 2018] ).

Finally, we disagree with defendant that his trial counsel's representation was ineffective based upon a conflict of interest. "A conflict-based ineffective assistance of counsel claim involves two inquiries. First, the court must assess whether there was a potential conflict of interest in a defendant's representation. Second, a defendant must show that the conduct of his [or her] defense was in fact affected by the operation of the conflict of interest, or that the conflict operated on the representation" ( People v. Abar, 99 N.Y.2d 406, 409, 757 N.Y.S.2d 219, 786 N.E.2d 1255 [2003] [internal quotation marks and citation omitted]; see People v. Wright, 129 A.D.3d 1217, 1219, 13 N.Y.S.3d 578 [2015], affd 27 N.Y.3d 516, 35 N.Y.S.3d 286, 54 N.E.3d 1157 [2016] ). Defendant claims his counsel was ineffective for asking him to sign an affidavit prior to sentencing that detailed his purchase...