People v. Blanford

• Decision Date: 30 January 2020
• Docket Number: 109630, 110543
• Citation: 179 A.D.3d 1388,118 N.Y.S.3d 294
• Parties: The PEOPLE of the State of New York, Respondent, v. Stephen R. BLANFORD, Appellant.
• Court: New York Supreme Court — Appellate Division

179 A.D.3d 1388
118 N.Y.S.3d 294

The PEOPLE of the State of New York, Respondent,
v.
Stephen R. BLANFORD, Appellant.

109630, 110543

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

Calendar Date: January 15, 2020
Decided and Entered: January 30, 2020

Christopher Hammond, Cooperstown, for appellant, and appellant pro se.

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

MEMORANDUM AND ORDER

Devine, J.

179 A.D.3d 1389

Defendant was charged in an indictment filed on June 10, 2016, later amended

118 N.Y.S.3d 297

(hereinafter the first indictment), with criminal possession of a controlled substance in the third degree (three counts) and criminal possession of a controlled substance in the seventh degree. Defendant was thereafter charged in a second indictment with aggravated unlicensed operation of a motor vehicle in the first degree and other crimes.¹ In September 2016, defendant pleaded guilty to all counts in the first indictment in exchange for a commitment by County Court to cap his sentence at two years in prison with one year of postrelease supervision; defendant thereafter remained free on bail pending sentencing. In November 2016, defendant pleaded guilty to aggravated unlicensed operation of a motor vehicle in the first degree under count 3 of the second indictment in satisfaction of all charges therein and, in exchange, was promised a conditional discharge for three years; he remained on bail pending sentencing. On the day scheduled for sentencing on both indictments in December 2016, the court adjourned sentencing to permit defendant to complete outpatient substance abuse treatment. At the next appearance two months later, defense counsel disclosed that defendant had relapsed, and the court remanded defendant to jail. At the following appearance, defense counsel requested a furlough to enable defendant to handle a property matter prior to sentencing and, in response, the court requested additional information and adjourned the matter for two weeks without ruling on the request.

On June 21, 2017,² County Court granted defendant a furlough from 9:00 a.m. until 3:00 p.m. that day, although any proceedings were off the record. At the next appearance on July 11, 2017, the court placed on the record that, upon return from his furlough, defendant tested positive for opioids and methamphetamine and indicated its intent to impose an enhanced sentence. Defendant made several pro se objections

179 A.D.3d 1390

and orally moved to withdraw his guilty plea,³ which the court denied. With regard to the first indictment, the court imposed enhanced concurrent prison sentences of 3½ years followed by two years of postrelease supervision on each conviction of criminal possession of a controlled substance in the third degree, to be served as parole supervision to include a three-month stay at the Willard drug treatment program followed by six months in a residential treatment facility (see CPL 410.91 ), and to a lesser one-year jail term on the remaining conviction. With regard to the second indictment, the court imposed time served with a fine and an unconditional discharge. Defendant moved to vacate the judgment and sentence pursuant to CPL 440.10 and 440.20, which the court denied in a written decision, without a hearing. Defendant appeals from the judgment of conviction and, by permission, from the order denying his CPL article 440 motion.⁴

Initially, defendant argues in his pro se brief that County Court erred in summarily denying his motion to suppress the physical evidence, i.e., heroin and methamphetamine, found on his person

118 N.Y.S.3d 298

following his arrest on a bench warrant.⁵ " ‘It is fundamental that a motion [to suppress] may be decided without a hearing unless the papers submitted raise a factual dispute on a material point which must be resolved before the court can decide the legal issue’ " ( People v. Mendoza , 82 N.Y.2d 415, 426, 604 N.Y.S.2d 922, 624 N.E.2d 1017 [1993], quoting People v. Gruden , 42 N.Y.2d 214, 215, 397 N.Y.S.2d 704, 366 N.E.2d 794 [1977] ). "[H]earings on suppression motions are not automatic or generally available for the asking by boilerplate allegations" ( People v. Burton , 6 N.Y.3d 584, 587, 815 N.Y.S.2d 7, 848 N.E.2d 454 [2006] [internal quotation marks and citation omitted] ). In his affidavit in support of the motion, defense counsel acknowledged that defendant had been arrested by police at home pursuant to a bench warrant,⁶ the validity of which was not substantively challenged, and that defendant was searched and the evidence seized upon his being

179 A.D.3d 1391

taken into police custody. While defense counsel conclusorily alleged that police lacked a "valid warrant," he made no factual allegations to support that claim (see CPL 710.60[1] ; People v. Mendoza , 82 N.Y.2d at 426–427, 604 N.Y.S.2d 922, 624 N.E.2d 1017 ). Given that a search of defendant's person incident to a lawful arrest on a bench warrant is permitted (see People v. Martin , 156 A.D.3d 956, 959, 66 N.Y.S.3d 572 [2017], lv denied 31 N.Y.3d 985, 77 N.Y.S.3d 663, 102 N.E.3d 440 [2018] ; People v. Gresham , 151 A.D.3d 1175, 1177, 57 N.Y.S.3d 532 [2017] ), County Court properly summarily denied the motion as "the sworn allegations of fact d[id] not as a matter of law support the ground alleged" ( CPL 710.60[3][b] ) and failed to "allege a ground constituting [a] legal basis for the motion" ( CPL 710.60[3][a] ; see People v. Burton , 6 N.Y.3d at 587, 815 N.Y.S.2d 7, 848 N.E.2d 454 ).

Additionally, County Court fully considered defendant's request for judicial diversion and the evaluation submitted with that request, which the People opposed. In its discretion (see CPL 216.05[1] ), the court determined based on the submissions that, although he is an "eligible defendant" ( CPL 216.00[1] ), ordering another evaluation was not warranted and defendant would not be an appropriate candidate for judicial diversion (see CPL 216.05[1] ; People v. Conley , 161 A.D.3d 1486, 1487, 77 N.Y.S.3d 772 [2018] ). We find no abuse of discretion in this regard (see People v. McKoy , 175 A.D.3d 1616, 1617–1618, 108 N.Y.S.3d 520 [2019], lvs denied 34 N.Y.3d 1016, 1018, 114 N.Y.S.3d 767, 138 N.E.3d 496 [2019]; People v. Conley , 161 A.D.3d at 1487, 77 N.Y.S.3d 772 ; People v. Clarke , 155 A.D.3d 1242, 1243–1244, 65 N.Y.S.3d 578 [2017], lv denied 30 N.Y.3d 1114, 77 N.Y.S.3d 339, 101 N.E.3d 980 [2018] ; cf. People v. Cora , 135 A.D.3d 987, 988–989, 22 N.Y.S.3d 655 [2016] ).⁷

118 N.Y.S.3d 299

Next, defendant's pro se challenge to his guilty plea as not knowing, voluntary and intelligent was preserved by his unsuccessful pro se motion to withdraw his guilty plea, to the extent that the motion was premised upon a claim of coercion and ineffective assistance of counsel (see People v. Wiggins , 176 A.D.3d 1255, 1256, 111 N.Y.S.3d 132 [2019] ). With regard to defendant's direct appeal, his claims are contradicted by the record, which reflects that he was clearly advised of the plea terms, indicated that he had adequate time to confer with counsel and was satisfied with his representation and was permitted to confer with counsel prior to the allocution. Defendant stated during the allocution that he was voluntarily entering a guilty plea and that he was not forced or compelled by anyone to do so, and then admitted that he had engaged in conduct constituting the crimes at issue and made no statement inconsistent with the

179 A.D.3d 1392

voluntariness of his guilty plea. In view of the foregoing, the pressure to which defendant now contends he was subjected "amounts to nothing more than the type of situational coercion faced by many defendants who are offered a plea deal," which did not render his plea involuntary ( People v. Mastro , 174 A.D.3d 1232, 1233, 105 N.Y.S.3d 715 [2019] [internal quotation marks and citation omitted] ). His claim to being coerced is belied by the record (see People v. Torres , 165 A.D.3d 1325, 1326, 85 N.Y.S.3d 242 [2018], lv denied 32 N.Y.3d 1210, 99 N.Y.S.3d 190, 122 N.E.3d 1103 [2019] ). Defendant's claims of ineffective assistance of counsel — and their impact upon the voluntariness of his guilty plea — concern matters both within and outside of the record on direct appeal and, thus, they will be jointly discussed in the context of his appeal from the denial of his motion to vacate the judgment (see People v. Taylor , 156 A.D.3d 86, 91–92, 64 N.Y.S.3d 714 [2017], lv denied 30 N.Y.3d 1120, 77 N.Y.S.3d 345, 101 N.E.3d 986 [2018] ). Defendant's further pro se challenge to the sufficiency of the evidence presented to the grand jury was waived by his valid guilty plea (see People v. Guerrero , 28 N.Y.3d 110, 116, 42 N.Y.S.3d 80, 65 N.E.3d 51 [2016] ; People v. Thacker , 173 A.D.3d 1360, 1361, 102 N.Y.S.3d 764 [2019], lv denied 34 N.Y.3d 938, 109 N.Y.S.3d 730, 133 N.E.3d 434 [2019] ).

To the extent that defendant's pro se complaints to County Court regarding defense counsel prior to sentencing could be interpreted as a request for substitute counsel, he failed to demonstrate...