People v. Nitchman

173 A.D.3d 1261

102 N.Y.S.3d 333

The PEOPLE of the State of New York, Respondent,

v.Donald NITCHMAN, Appellant.

109961

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

Calendar Date: April 25, 2019

Decided and Entered: June 6, 2019

Brian M. Quinn, Albany, for appellant.

Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.

Before: Lynch, J.P., Clark, Devine, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Devine, J. Appeal, by permission, from an order of the County Court of Saratoga County (Sira, J.), entered November 21, 2016, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crimes of criminal sexual act in the first degree and criminal sexual act in the second degree (two counts), without a hearing.

In June 2008, defendant was arrested and charged with sex offenses involving underage victims, and he has been in custody from that point forward. Four months later, he was charged in a 456–count indictment with offenses stemming from that conduct. In satisfaction of the indictment, he pleaded guilty to criminal sexual act in the first degree and criminal sexual act in the second degree (two counts) in July 2009. County Court (Scarano, J.) then imposed concurrent sentences that were within the agreed-upon range, namely, 20 years in prison and five years of postrelease supervision on the criminal sexual act in the first degree conviction and 3½ to 7 years in prison on each criminal sexual act in the second degree conviction. Defendant failed to appeal in a timely manner.

In 2016, defendant moved to vacate the judgment of conviction pursuant to CPL 440.10, arguing that he would have accepted a more lenient preindictment plea offer and that defense counsel's failure to advise him of its existence constituted ineffective assistance. County Court (Sira, J.) denied the motion without a hearing. Defendant now appeals, by permission, from that order.

We reverse. To make out "an ineffective assistance of counsel claim based upon the defense counsel's failure to adequately inform the defendant of a plea offer," a defendant must show "that the People made the plea offer, that the defendant was not adequately informed of the offer, that there was a reasonable probability that the defendant would have accepted the offer had counsel adequately communicated it to him [or her], and that there was a reasonable likelihood that neither the People nor the court would have blocked the alleged agreement" ( People v. Nicelli, 121 A.D.3d 1129, 1129–1130, 994 N.Y.S.2d 422 [2014], lv denied 24 N.Y.3d 1220, 4 N.Y.S.3d 609, 28 N.E.3d 45 [2015] ; see People v. Rudolph, 170 A.D.3d 1258, 1262–1263, 95 N.Y.S.3d 629 [2019] ; People v. Blackman, 166 A.D.3d 1321, 1323–1324, 87 N.Y.S.3d 395 [2018] ; People v. Brett W., 144 A.D.3d 1314, 1316, 42 N.Y.S.3d 362 [2016] ). Defendant did not dispute before County Court that this was the correct standard. His present argument, that there was no need to show that the People and County Court were reasonably likely to go along with the plea offer, is accordingly unpreserved for our review (see Pauling v. Orentreich Med. Group, 14 A.D.3d 357, 358, 787 N.Y.S.2d 311 [2005], lv denied 4 N.Y.3d 710, 797 N.Y.S.2d 817, 830 N.E.2d 1146 [2005] ; compare People v. Fernandez, 5 N.Y.3d 813, 814, 803 N.Y.S.2d 22, 836 N.E.2d 1144 [2005] [parties agreed on standard without that element] ). In any event, inasmuch as "our state standard considers prejudice to be a significant, but not indispensable element in assessing meaningful representation," a claim that defense counsel was ineffective in failing to relay a doomed plea offer would be viewed skeptically under it ( People v. Alvarez, 33 N.Y.3d 286, 289–90, 101 N.Y.S.3d 702, 125 N.E.3d 117, 2019 N.Y. Slip Op. 02383, 2019 WL 1433725, *2 [2019] [internal quotation marks and citations omitted]; see People v. Stultz, 2 N.Y.3d 277, 283–284, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004] ), and we perceive no reason to depart from our prior cases requiring a defendant to show that the plea would have likely come to fruition (see People v. Rudolph, 170 A.D.3d at 1263, 95 N.Y.S.3d 629 ; People v. Blackman, 166 A.D.3d at 1323–1324, 87 N.Y.S.3d 395 ; People v. Brett W., 144 A.D.3d at 1316, 42 N.Y.S.3d 362 ).

There is no dispute that the People made a preindictment plea offer more lenient than the one that defendant later accepted – an offer that the People presumably extended "in a fair and honest manner" and believed would pass muster with County Court ( Matter of Stephens v. Ward, 63 A.D.2d 798, 799, 404 N.Y.S.2d 930 [1978] ) – and that the offer was rejected and withdrawn. Defendant averred that he did not know about this offer and would have accepted it. Defendant's account is not beyond dispute, as the record shows that defense counsel visited him in jail on two occasions...