People v. Ballard

• Decision Date: 30 December 2021
• Docket Number: 109787, 112145
• Citation: 200 A.D.3d 1476,159 N.Y.S.3d 242
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert BALLARD, Also Known as GO, Appellant.
• Court: New York Supreme Court — Appellate Division

200 A.D.3d 1476
159 N.Y.S.3d 242

The PEOPLE of the State of New York, Respondent,
v.
Robert BALLARD, Also Known as GO, Appellant.

109787, 112145

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

Calendar Date: November 15, 2021
Decided and Entered: December 30, 2021

159 N.Y.S.3d 243

Angela M. Kelley, Albany, for appellant.

Meagan K. Galligan, District Attorney, Monticello (Rachel I. Kesten of counsel), for respondent.

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

MEMORANDUM AND ORDER

Egan Jr., J.P.

Appeals (1) from a judgment of the Supreme Court (Schick, J.), rendered June 26, 2017 in Sullivan County, convicting defendant upon his pleas of guilty of the crimes of conspiracy in the second degree, criminal possession of a weapon in the second degree and criminal possession of a controlled substance in the second degree, and (2) by permission, from an order of said court, entered March 2, 2020 in Sullivan County, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Defendant and several codefendants, including his wife, were charged in an indictment with offenses related to their involvement in a narcotics distribution ring and, in his case, weapon possession. In satisfaction of the charges against defendant and with assurances that the People would recommend both that he serve no more than 19 years in prison and that his wife serve only a term of probation supervision in connection with a plea resolving the charges against her, defendant pleaded guilty to conspiracy in the second degree, criminal possession of a controlled substance in the first degree and criminal possession of a weapon in the second degree. He further purportedly waived his right to appeal as part of the agreement. During the plea colloquy, Supreme Court advised defendant that it would likely sentence him to a total of 14 years in prison and that, if it could not do so, it would allow him to withdraw his guilty plea.

After the parties realized that defendant was a second felony drug offender previously convicted of a violent felony who

159 N.Y.S.3d 244

could not be sentenced to less than 15 years in prison on the drug possession count, they agreed to modify the plea arrangement so that, as to said count, defendant would plead guilty to a reduced charge of criminal possession of a controlled substance in the second degree and forfeit certain monies and property (see Penal Law § 70.71[4] ). He entered a plea to that charge following a colloquy. Supreme Court then sentenced defendant to concurrent terms of 14 years in prison to be followed by five years of postrelease supervision on the drug possession conviction, 7½ to 15 years in prison on the conspiracy conviction and 10 years in prison to be followed by five years of postrelease supervision on the weapon possession conviction. Defendant appeals from the judgment of conviction and, by permission, from the subsequent denial of his CPL article 440 motion to vacate the judgment.

We affirm. The People initially concede, and we agree, that defendant's appeal waiver was invalid (see People v. Jones, 199 A.D.3d 1069, 1070, 156 N.Y.S.3d 552 [2021] ; People v. Barrales, 179 A.D.3d 1313, 1314–1315, 118 N.Y.S.3d 263 [2020] ). Nevertheless, "[i]n the absence of a motion to withdraw his plea, defendant's challenge to the voluntariness of his plea was not preserved in his direct appeal" ( People v. Allevato, 170 A.D.3d 1264, 1265, 93 N.Y.S.3d 753 [2019], lv denied 34 N.Y.3d 949, 110 N.Y.S.3d 623, 134 N.E.3d 622 [2019] ; see People v. Dickerson, 198 A.D.3d 1190, 1192–1193, 156 N.Y.S.3d 526 [2021] ). The narrow exception to the preservation requirement...