People v. Rubert

206 A.D.3d 1378

170 N.Y.S.3d 346

The PEOPLE of the State of New York, Respondent,

v.Jose RUBERT, Appellant.

112153, 113002

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

Calendar Date: May 25, 2022

Decided and Entered: June 23, 2022

Mark Diamond, Albany, for appellant.

Meagan K. Galligan, District Attorney, Monticello (Lisa M. Bondarenka of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Aarons, Fisher and McShan, JJ.

MEMORANDUM AND ORDER

Aarons, J. Appeals (1) from a judgment of the County Court of Sullivan County (McGuire, J.), rendered August 2, 2019, convicting defendant upon his plea of guilty of the crimes of reckless endangerment in the first degree, attempted assault in the third degree and driving while ability impaired by drugs, and (2) by permission, from an order of said court (Rounds, J.), entered July 2, 2020, which denied defendant's motion pursuant to CPL 440.10 and 440.20 to vacate the judgment of conviction and to set aside the sentence, without a hearing.

In October 2018, defendant¹ was indicted and charged with attempted assault in the second degree, criminal possession of a weapon in the fourth degree, reckless endangerment in the first degree, criminal mischief in the second degree (two counts), criminal mischief in the third degree, driving while ability impaired by drugs, unlawfully fleeing a police officer in a motor vehicle in the third degree and resisting arrest. The charges stemmed from an incident that occurred more than a year earlier, wherein defendant, after assaulting the victim, led law enforcement on a vehicular pursuit through Sullivan County. Following his arraignment, at which time it was revealed that defendant was being held in federal custody, defendant expressed a desire to proceed pro se with standby counsel. Defendant's subsequent motion to, among other things, dismiss the indictment – premised upon counsel's alleged failure to secure defendant's testimony before the grand jury – was denied as untimely, and the matter proceeded to a Huntley hearing.

At the conclusion thereof, defendant requested that he again be assigned counsel, and discussions ensued regarding the possibility of a plea agreement. Ultimately, defendant was afforded an opportunity to plead guilty to reckless endangerment in the first degree, attempted assault in the third degree and driving while ability impaired by drugs. The sentence to be imposed upon the reckless engagement conviction would be capped at a prison term of 2 to 6 years, and the sentences imposed upon the remaining convictions would merge therein. Although defendant could argue for leniency at sentencing, in no case would the sentence imposed be less than 1 to 4 years. The plea agreement also required defendant to waive his right to appeal.

Against that backdrop, and following a lengthy plea colloquy, defendant pleaded guilty in conformity with the agreement. County Court (McGuire, J.) thereafter sentenced defendant to a prison term of 2 to 6 years upon his conviction of reckless endangerment in the first degree, to time served upon his conviction of attempted assault in the third degree and to one year in the local jail upon his conviction of driving while ability impaired by drugs – all sentences to run concurrently. Defendant's subsequent motion to vacate the judgment of conviction and to set aside the sentence was unsuccessful. Defendant appeals from the judgment of conviction and, by permission, from the order denying his CPL article 440 motion.

As to the issues raised upon defendant's direct appeal, by pleading guilty, defendant – who then was represented by counsel (compare People v. Trapani, 162 A.D.3d 1121, 1122–1123, 78 N.Y.S.3d 745 [2018] ) – "forfeited any claim that he was denied his right to appear before the grand jury" ( People v. Williams, 171 A.D.3d 1354, 1355, 98 N.Y.S.3d 664 [2019] ; see People v. Nieves, 166 A.D.3d 1380, 1381 n., 88 N.Y.S.3d 703 [2018], lvs denied 33 N.Y.3d 975, 979, 101 N.Y.S.3d 231, 234, 124 N.E.3d 720, 723 [2019]). Contrary to defendant's assertion, he had no constitutional right to testify before the grand jury, and "[t]he various risks and benefits that must be considered render the decision of whether to exercise this statutory right an appropriate one for the lawyer, not the client" ( People v. Hogan, 26 N.Y.3d 779, 786, 28 N.Y.S.3d 1, 48 N.E.3d 58 [2016] [internal quotation marks and citation omitted]). Defendant's related pro se motion to dismiss the indictment – made more than three months after defendant's arraignment thereon – was properly denied as untimely (see CPL 190.50[5][c] ).

With respect to the plea itself, any challenge to the voluntariness and/or factual sufficiency thereof is unpreserved for our review as the record does not reflect that defendant made an appropriate postallocution motion – despite having ample opportunity to do so prior to sentencing (see People v. Davis, 204 A.D.3d 1072, 1074, 166 N.Y.S.3d 377 [2022], lv denied ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2022 WL 2115017 [May 31, 2022] ; People v. Jackson, 203 A.D.3d 1388, 1389, 161 N.Y.S.3d 855 [2022] ). The narrow exception to the preservation requirement was not triggered, as defendant did not make any statements that were inconsistent with his guilt, negated an element of the charged crimes or otherwise called into question the voluntariness of his plea (see People v. Wood, 203 A.D.3d 1406, 1406–1407, 164 N.Y.S.3d 727 [2022] ; People v. Blankenbaker, 197 A.D.3d 1353, 1354, 150 N.Y.S.3d 631 [2021] ). "Contrary to defendant's assertion, he was not required to recite the elements of the crime[s] or engage in a factual exposition, as his affirmative responses...