People v. Agueda

• Decision Date: 03 February 2022
• Docket Number: 110702, 112643
• Citation: 202 A.D.3d 1153,160 N.Y.S.3d 489
• Parties: The PEOPLE of the State of New York, Respondent, v. Leoneudi AGUEDA, Appellant.
• Court: New York Supreme Court — Appellate Division

202 A.D.3d 1153

160 N.Y.S.3d 489

The PEOPLE of the State of New York, Respondent,

v.Leoneudi AGUEDA, Appellant.

110702, 112643

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

Calendar Date: January 12, 2022

Decided and Entered: February 3, 2022

Mark Diamond, Albany, for appellant.

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

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

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J. Appeals (1) from a judgment of the County Court of Ulster County (Williams, J.), rendered July 27, 2018, convicting defendant upon his plea of guilty of the crime of criminal sexual act in the second degree, and (2) by permission, from an order of said court (Rounds, J.), entered August 17, 2020, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing, and (3) by permission, from an order of said court (Rounds,8 J.), entered December 8, 2020, which, upon reargument, adhered to its prior decision.

Pursuant to a negotiated plea agreement, defendant pleaded guilty as charged in an indictment to criminal sexual act in the second degree and admitted that he had oral sexual contact with the 12–year–old victim. As part of that agreement, defendant waived his right to appeal and signed a written waiver of appeal in open court. In exchange, the People agreed not to present to the grand jury – which had been extended to consider additional charges – more serious charges including A–II and B violent felonies and a bribery charge stemming from defendant's alleged attempts to bribe witnesses appearing before the grand jury. County Court (Williams, J.) thereafter imposed the promised seven-year prison sentence to be followed by 10 years of postrelease supervision.

Two years later, defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction, contending, among other things, that his plea was not knowing, voluntary and intelligent in that he was pressured to accept the plea deal and was deprived of the effective assistance of counsel. The People opposed the motion. County Court (Rounds, J.) denied the motion on the ground that the issues raised are based upon matters that either were part of – or through the exercise of due diligence could have been made to appear upon – the trial record and are not properly the subject of a CPL article 440 motion (see CPL 440.10[3][a] ). Defendant thereafter moved to reargue the motion on the ground that he had not been served with, or had an opportunity to reply to, the People's affirmation in opposition. County Court granted reargument, considered defendant's papers submitted in reply and adhered to its decision denying the motion to vacate the judgment. Defendant appeals from the judgment of conviction and, with permission, from the orders denying his CPL 440.10 motion.

Initially, with respect to the judgment of conviction, defendant's challenge to the agreed-upon sentence as harsh and excessive is precluded by his unchallenged oral and written waiver of appeal (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Brickhouse, 181 A.D.3d 1057, 1057, 117 N.Y.S.3d 892 [2020], lv denied 35 N.Y.3d 1025, 126 N.Y.S.3d 26, 149 N.E.3d 864 [2020] ). Although defendant's further argument that his guilty plea was not knowing, intelligent and voluntary, in that it was the product of coercion and undue pressure, survives his unchallenged appeal waiver, it is unpreserved given that the record does not reflect that he made an appropriate postallocution motion despite having had ample time in which to do so (see CPL 220.60[3] ; People v. Williams, 27 N.Y.3d 212, 219–222, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ; People v. McCoy, 198 A.D.3d 1021, 1022, 152 N.Y.S.3d 635 [2021] ). Defendant's related contention that he received ineffective assistance of counsel, to the extent that it implicates the voluntariness of his plea, also survives the appeal waiver but is similarly unpreserved (see People v. Vilbrin, 183 A.D.3d 1012, 1013, 123 N.Y.S.3d 297 [2020], lv denied 35 N.Y.3d 1049, 127 N.Y.S.3d 861, 151 N.E.3d 543 [2020] ). Moreover, defendant did not make any statements during the plea colloquy or sentencing that triggered the narrow exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. McCoy, 198 A.D.3d at 1022–1023, 152 N.Y.S.3d 635 ). Were we to address the challenge to his plea, we would find that it is unsupported by the record, which reflects that County Court (Williams, J.) carefully explained the terms of the plea agreement and that the additional charges were only a possibility, afforded defendant ample time to discuss the plea terms with defense counsel, and he indicated that he had sufficient time to discuss it with counsel and was not being pressured. As such, we would find that the pressure to which defendant now contends he was subjected amounts to no more than "the type of situational coercion faced by many defendants who are offered a plea deal" ( People v. LaPierre, 189 A.D.3d 1813, 1815, 137 N.Y.S.3d 583 [2020] [internal quotation marks and citation omitted], lv denied 36 N.Y.3d 1098, 144 N.Y.S.3d 138, 167 N.E.3d 1273 [2021] ) and that, after being informed of his options, he made "a knowing, voluntary and intelligent choice among alternative courses of action" ( People v. Conceicao, 26 N.Y.3d 375, 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] [internal quotation marks and citation omitted]).

Next, defendant contends that County Court (Rounds, J.) erred in denying his CPL article 440 motion without a hearing on the ground that he was deprived of the effective assistance of counsel.

Defendant raised a litany of claims as to how defense counsel was ineffective, including that counsel failed to adequately investigate the case, to present possible defenses to the charges or move to suppress his statements to police, and that counsel coerced his guilty plea and failed to argue for sentencing leniency. However, as County Court noted, defendant's motion papers reflect that most of these issues could have been, but were not, raised before the trial court, prior to sentencing, and argued on direct appeal. That is, these "issues are based upon matters that either were part of — or through the exercise of due diligence could have been made to appear upon — the trial record" ( People v. Durham, 195 A.D.3d 1318, 1321, 149 N.Y.S.3d 697 [2021], citing CPL 440.10[3][a] ). For example, prior to sentencing, defendant was aware that counsel did not move to suppress his statements, present defenses or argue for sentencing leniency and, nonetheless, he entered a guilty plea, admitted his guilt and accepted the promised sentence without making any effort to raise these issues (see People v. Stanley, 189 A.D.3d 1818, 1819, 136 N.Y.S.3d 569 [2020] ; People v. Chaney, 160 A.D.3d 1281, 1285, 76 N.Y.S.3d 257 [2018], lv denied 31 N.Y.3d 1146, 83 N.Y.S.3d 427, 108 N.E.3d 501 [2018] ). Moreo...