People v. Sutton

221 A.D.3d 1185

200 N.Y.S.3d 480

The PEOPLE of the State of New York, Respondent,

v.Thomas W. SUTTON, Appellant.

112669

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

Calendar Date: October 13, 2023

Decided and Entered: November 16, 2023

Barrett D. Mack, Albany, for appellant.

Michael A. Korchak, District Attorney, Binghamton (Geoffrey B. Rossi of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Ceresia, McShan and Powers, JJ.

MEMORANDUM AND ORDER

Clark, J. Appeal from a judgment of the County Court of Broome County (Kevin P. Dooley, J.), rendered August 4, 2020, convicting defendant upon his plea of guilty of the crime of attempted arson in the second degree.

Defendant was indicted and charged with arson in the second degree and arson in the fourth degree. After rejecting the People's initial offer, defendant agreed to plead guilty – in full satisfaction of the indictment and other pending charges – to the reduced charge of attempted arson in the second degree with the understanding that he would be sentenced to a prison term of 3½ years followed by 2½ years of postrelease supervision. The plea agreement also required defendant to waive his right to appeal. Defendant pleaded guilty in conformity with the plea agreement, and the matter was adjourned for sentencing. When the parties returned for sentencing, defendant asked to withdraw his plea based upon the ineffective assistance of counsel. County Court deemed the various letters sent by defendant to the court to be a motion to withdraw and, after addressing the concerns raised therein, denied defendant's motion and imposed the agreed-upon sentence. This appeal by defendant ensued.¹

We affirm. Defendant's claim that he was denied the effective assistance of counsel – to the extent that it implicates the voluntariness of his plea – survives his unchallenged appeal waiver and is preserved by his unsuccessful motion to withdraw his plea and request for new counsel (see People v. Sanders, 203 A.D.3d 1403, 1404, 161 N.Y.S.3d 856 [3d Dept. 2022] ). However, we find such claim to be lacking in merit. "In 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" ( id. [internal quotation marks and citations omitted]; accord People v. Clark, 209 A.D.3d 1063, 1066, 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] ). As County Court observed, defense counsel secured an advantageous plea agreement allowing defendant to plead guilty to a reduced charge and to receive the minimum permissible sentence for a class C violent felony, satisfying both the underlying indictment and other pending charges (see Penal Law §§ 70.02[1][b] ; [3][b]; 70.45[2][f]; People v. Clark, 209 A.D.3d at 1066, 175 N.Y.S.3d 751 ; People v. Sanders, 203 A.D.3d at 1404, 161 N.Y.S.3d 856 ). Although defendant raised concerns at arraignment regarding counsel's level of communication with him and her pursuit of certain discovery materials, any issue regarding the People's compliance with discovery demands was resolved prior to defendant pleading guilty, and defendant assured County Court during the plea colloquy that he had been afforded sufficient time to confer with counsel. Similarly, although defendant claimed at sentencing that counsel used "scare tactics" to coerce him into pleading guilty and neglected to "fight" for his release on bail, such claims are belied by the record; defendant expressly assured the court that he was pleading guilty of his own free will, and it is clear that County Court twice considered the appropriate amount of bail to be set. In any event, "defense counsel's frank advice regarding the strength of the People's case against defendant and the potential increased sentencing exposure did not amount to coercive or threatening conduct" ( People v. Wood, 203 A.D.3d 1406, 1407, 164 N.Y.S.3d 727 [3d Dept. 2022] [internal quotation marks and citation omitted], lv denied 38 N.Y.3d 1075, 171 N.Y.S.3d 435, 191 N.E.3d 387 [2022] ).

Defendant also asserts that counsel was deficient because she allowed him to plead guilty to an offense that rendered him ineligible for participation in certain programs or housing assignments. To the extent that such claim impacts upon the voluntariness of defendant's plea (see People v. Perkins, 140 A.D.3d 1401, 1402–1403, 33 N.Y.S.3d 584 [3d Dept. 2016], lv denied 28 N.Y.3d 1126, 51 N.Y.S.3d 22, 73 N.E.3d 362 [2016] ), County Court explained to defendant that, given the charges against him, such programs were unavailable to him from the start (see Penal Law § 70.02[1][b] ; Correction Law § 865[1] ), and defense counsel cannot be faulted for failing to pursue an argument that has little or no chance of success (see People v. Arroyo, 202 A.D.3d 1212, 1214, 162 N.Y.S.3d 217 [3d Dept. 2022], lv denied 38 N.Y.3d 910, 172 N.Y.S.3d 413, 192 N.E.3d 340 [2022] ). Finally, although defendant now claims that his mental health conditions interfered with his ability to process information and that counsel should have urged the court to consider defendant's physical and...