People v. Chaney

• Decision Date: 26 April 2018
• Docket Number: 108731,109211,107757
• Citation: 76 N.Y.S.3d 257,160 A.D.3d 1281
• Parties: The PEOPLE of the State of New York, Respondent, v. Nakia Terry CHANEY, Appellant.
• Court: New York Supreme Court — Appellate Division

160 A.D.3d 1281

76 N.Y.S.3d 257

The PEOPLE of the State of New York, Respondent,

v.Nakia Terry CHANEY, Appellant.

107757

108731

109211

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

Calendar Date: March 29, 2018

Decided and Entered: April 26, 2018

Aaron A. Louridas, Delmar, for appellant, and appellant pro se.

P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Devine, Aarons and Rumsey, JJ.

MEMORANDUM AND ORDER

Rumsey, J.

Appeals (1) from a judgment of the County Court of Albany County (Lynch, J.), rendered July 9, 2015, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fourth degree, and (2) by permission, from two orders of said court, entered August 18, 2016 and March 23, 2017, which denied defendant's motions pursuant to CPL article 440 to vacate the judgment of conviction and to set aside the sentence, without hearings.

Pursuant to a plea agreement, defendant waived indictment and pleaded guilty to criminal possession of a controlled substance in the fourth degree as charged in a superior court information (hereinafter SCI), stemming from his admitted possession of prepackaged bags of heroin. As part of the agreement, defendant executed a written waiver of appeal. After defendant made a pro se motion to withdraw his guilty plea premised upon a claim of ineffective assistance of counsel, County Court assigned new counsel and, at the next appearance, defendant, with the assistance of substitute counsel, expressly withdrew that motion. County Court then imposed the agreed-upon prison sentence of 2½ years with two years of postrelease supervision, to be served concurrently with a one-year sentence he was serving on a Schenectady County conviction, and ordered that he be placed in a Comprehensive Alcohol Substance Abuse Treatment program (see Penal Law § 60.04[6] ). Defendant subsequently twice moved pursuant to CPL 440.10 and 440.20 to vacate the judgment of conviction based upon ineffective assistance of counsel and actual innocence, among other grounds, and to set aside the sentence, which County Court denied in two orders. Defendant appeals from the judgment of conviction and, by permission, from the orders denying his CPL article 440 motions.

Initially, defendant's combined oral and written waiver of appeal is valid (see People v. Tulip, 150 A.D.3d 1564, 1565, 52 N.Y.S.3d 679 [2017] ). The plea minutes reflect that defendant was advised that a waiver of appeal was a condition of the plea agreement, County Court explained that defendant ordinarily retained the right to appeal and made clear that the waiver was separate and distinct from the trial-related rights that he automatically forfeited by his guilty plea, and defendant indicated that he understood and voluntarily waived this right (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Hutchison, 151 A.D.3d 1481, 1482, 54 N.Y.S.3d 879 [2017] ). Defendant reviewed the written waiver of the right to appeal with counsel that specifically precluded a challenge to the agreed-upon sentence. After review, he signed the waiver—which also recited that his counsel had informed him of the legal ramifications of the waiver—and stated to the court that he understood the waiver and agreed to be bound by it. Accordingly, we are satisfied that the waiver of appeal was knowing, voluntary and intelligent (see People v. Sanders, 25 N.Y.3d 337, 339–341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ). Thus, defendant's challenges to the sufficiency of the plea allocution (see People v. Welden, 156 A.D.3d 1241, 1241, 65 N.Y.S.3d 814 [2017] ) and to the agreed-upon sentence as harsh and excessive are precluded (see People v. Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Tulip, 150 A.D.3d at 1565–1566, 52 N.Y.S.3d 679).

Defendant claims that the SCI was jurisdictionally defective. While this claim survives the valid appeal waiver and is not subject to preservation rules (see People v. Pierce, 14 N.Y.3d 564, 570 n. 2, 904 N.Y.S.2d 255, 930 N.E.2d 176 [2010] ), it lacks merit. An SCI "is jurisdictionally defective only if it does not effectively charge the defendant with the commission of a particular crime—for instance, if it fails to allege that the defendant committed acts constituting every material element of the crime charged" ( People v. D'Angelo, 98 N.Y.2d 733, 734–735, 750 N.Y.S.2d 811, 780 N.E.2d 496 [2002] ; see People v. Brice, 146 A.D.3d 1152, 1153–1154, 46 N.Y.S.3d 282 [2017], lv denied 29 N.Y.3d 996, 57 N.Y.S.3d 717, 80 N.E.3d 410 [2017] ). Here, the SCI "cited the pertinent Penal Law section and recited the statutory elements of the crime and, accordingly, [it] was not jurisdictionally defective" ( People v. Dubois, 150 A.D.3d 1562, 1564, 55 N.Y.S.3d 513 [2017] ; see People v. Kamburelis, 100 A.D.3d 1189, 1189–1190, 954 N.Y.S.2d 254 [2012] ). Defendant's challenges to the evidence underlying the charge and to the sufficiency of the factual allegations are nonjurisdictional in nature and, thus, precluded by the guilty plea and appeal waiver (see People v. Brice, 146 A.D.3d at 1154, 46 N.Y.S.3d 282 ; People v. Young, 100 A.D.3d 1186, 1188, 954 N.Y.S.2d 244 [2012], lv denied 21 N.Y.3d 1021, 971 N.Y.S.2d 503, 994 N.E.2d 399 [2013] ; People v. George, 261 A.D.2d 711, 713, 694 N.Y.S.2d 478 [1999], lv denied 93 N.Y.2d 1018, 697 N.Y.S.2d 577, 719 N.E.2d 938 [1999] ).

Next, we reject defendant's argument that County Court failed to abide by the sentencing promise. While defendant is correct that, "a guilty plea induced by an unfulfilled promise either must be vacated or the promise honored" ( People v. Collier, 22 N.Y.3d 429, 433, 982 N.Y.S.2d 34, 5 N.E.3d 5 [2013] [internal quotation marks, brackets and citation omitted], cert denied ––– U.S. ––––, 134 S.Ct. 2730, 189 L.Ed.2d 770 [2014] ), the record reflects that he in fact received the promised sentence. To that end, County Court advised defendant during the plea allocution that the agreed-upon 2½–year prison sentence would be concurrent with the one-year sentence that he was then serving on the Schenectady County conviction; the court then explicitly informed him that, because he had been released on his own recognizance on this charge following his arraignment and had not been incarcerated on this charge, he would receive jail credit for the time he had served to date against the Schenectady County sentence only. The court revoked his release on this charge and advised him that he would receive jail credit against this sentence from that date forward. The court further explained that, in recognition of the fact that defendant would not be receiving jail credit against this crime for the time to date that he had been in jail on the Schenectady County matter, the plea offer had previously been reduced by the People from three years to 2½ years, with two years of postrelease supervision. Defendant indicated that he understood and agreed, and thereafter pleaded guilty. Thus, contrary to his claim, the court fully honored the plea agreement.¹

Defendant's claim that County Court abdicated its sentencing responsibility is belied by the record. At sentencing, defendant requested, in lieu of the agreed-upon prison term, that the court impose judicial diversion (see CPL 216.05[4] ) or parole supervision (see CPL 410.91 ). The court explained its reasons for declining these requests,² including that defendant had previously been rejected from drug court and that it found no reason to deviate from the plea agreement, while expressly recognizing that it retained sentencing discretion to deviate from that agreement (while allowing the People an opportunity to withdraw consent to the plea agreement). As the court was aware of and exercised its discretionary sentencing authority, we discern no error (see People v. Schultz, 73 N.Y.2d 757, 758, 536 N.Y.S.2d 46, 532 N.E.2d 1274 [1988] ; People v. Farrar, 52 N.Y.2d 302, 305–306, 437 N.Y.S.2d 961, 419 N.E.2d 864 [1981] ; People v. Mattucci, 92 A.D.3d 1029, 1029–1030, 937 N.Y.S.2d 727 [2012], lv denied 19 N.Y.3d 964, 950 N.Y.S.2d 116, 973 N.E.2d 214 [2012] ).

Further, we find that County Court properly denied defendant's pro se motions to, among other requested relief, vacate the judgment of conviction and set aside the sentence, without hearings. "On a motion to vacate a judgment of conviction, a hearing is only required if the submissions ‘show that the nonrecord facts sought to be established are material and would entitle the defendant to relief’ " ( People v. Brandon, 133 A.D.3d 901, 903–904, 20 N.Y.S.3d 432 [2015] [brackets omitted], lvs denied 27 N.Y.3d 992, 1000, 38 N.Y.S.3d 103, 59 N.E.3d 1215 [2016], quoting People v. Satterfield, 66 N.Y.2d 796, 799, 497 N.Y.S.2d 903, 488 N.E.2d 834 [1985] ; see CPL 440.30[5] ). With regard to defendant's contentions that suppression hearings should have been held, the record reflects that he never moved to suppress the evidence and, accordingly, his valid guilty plea, in which he expressly waived the right to pretrial hearings and defenses, and his appeal waiver waived any challenge to the admissibility of evidence (see CPL 710.70[3] ; People v. Felker, 155 A.D.3d 1258, 1259, 64 N.Y.S.3d 746 [2017] ; see also People v. Sanders, 25 N.Y.3d at 342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ).

Defendant's claim that he was deprived of the effective assistance of counsel due to counsel's failure to move to suppress certain evidence survives the appeal waiver only to the extent that it implicates the voluntariness of his guilty plea, but it was not preserved for appellate review (see CPL 220.60[3] ; People v. Hall, 147 A.D.3d 1151, 1152, 47 N.Y.S.3d 147 [2017], lv denied 29 N.Y.3d 1080, 64 N.Y.S.3d 170, 86 N.E.3d 257 [2017] ; People v. Wicks, 83 A.D.3d 1223, 1225, 920 N.Y.S.2d 488 [2011], lv denied 17 N.Y.3d 810, 929 N.Y.S.2d 570, 953 N.E.2d 808 [2011] ). A...