People v. Decker

• Decision Date: 05 May 2016
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert D. DECKER, Appellant.
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 1113

30 N.Y.S.3d 751

2016 N.Y. Slip Op. 03554

The PEOPLE of the State of New York, Respondent,

v.Robert D. DECKER, Appellant.

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

May 5, 2016.

Matthew Hug, Troy, for appellant.

Eric T. Schneiderman, Attorney General, New York City (Matthew B. Keller of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, ROSE, LYNCH and AARONS, JJ.

PETERS, P.J.

Appeals (1) from a judgment of the County Court of Montgomery County (Catena, J.), rendered July 24, 2014, convicting defendant upon his plea of guilty of the crime of criminal possession of a forged instrument in the second degree, (2) from a judgment of the County Court of Saratoga County (Scarano, J.), rendered July 25, 2014, convicting defendant upon his plea of guilty of the crimes of grand larceny in the third degree, scheme to defraud in the first degree, offering a false instrument in the first degree and petit larceny, and (3) by permission, from an order of the County Court of Montgomery County (Catena, J.), entered November 6, 2014, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Following an investigation by the Attorney General's office, defendant—a home improvement contractor—was accused of engaging in a multi-county scheme in which he bilked dozens of clients out of substantial sums of money. In accordance with a plea offer proposed by the People, defendant pleaded guilty to a Montgomery County indictment charging him with the crime of criminal possession of a forged instrument in the second degree and waived his right to appeal in exchange for a promised prison sentence of 1 to 3 years and restitution not to exceed $500. Thereafter, pursuant to a written plea agreement, defendant waived indictment and pleaded guilty to a Saratoga County superior court information (hereinafter SCI) charging him with the crimes of grand larceny in the third degree, scheme to defraud in the first degree, offering a false instrument in the first degree and petit larceny in full satisfaction of all charged and uncharged crimes relating to the operation of his home improvement contracting business during the period from April 2011 to December 2013. The People further agreed that, in consideration of the Saratoga County plea, defendant's son would be permitted to plead guilty to a misdemeanor in satisfaction of a then-pending felony charge and that additional charges would not be pursued against the son in connection with his involvement in defendant's business. Defendant waived his right to appeal, agreed to pay restitution in an amount not exceeding $375,000 and was promised an aggregate prison term of 2 to 6 years to run consecutively to the sentence imposed in Montgomery County.

After the entry of the pleas in both counties, defendant, represented by newly assigned counsel, separately moved in Montgomery County Court and Saratoga County Court to withdraw his respective guilty pleas on the basis that, among other things, he was denied the effective assistance of counsel and his pleas were coerced by both the threat of his son's prosecution and imprisonment as well as the People's promise of leniency if he were to capitulate to the Saratoga County plea agreement. Defendant's motions were denied, he was sentenced by each court in accordance with the terms of the applicable plea agreement and a hearing was scheduled by Saratoga County Court to determine the amount of restitution. Thereafter, pursuant to CPL 440.10, defendant sought to vacate both his Montgomery County and Saratoga County judgments of conviction on the ground that his guilty pleas were coerced. Defendant also moved in Saratoga County Court to renew his motion to withdraw his guilty plea or, alternatively, to renew his motion to vacate the judgment of conviction, alleging that the SCI was jurisdictionally defective. Montgomery County Court denied defendant's CPL 440.10 motion without a hearing. Saratoga County Court denied defendant's motion to renew and, upon converting his CPL 440.10 motion into a motion to renew his motion to withdraw the guilty plea, denied such motion. Following a hearing, Saratoga County Court ordered defendant to pay restitution in the amount of $167,434.19. Defendant appeals from both judgments of conviction and, by permission, the denial of his CPL 440.10 motion without a hearing.

While defendant's claim that the SCI was jurisdictionally defective survives both his guilty plea and valid appeal waiver (see People v. Pierce, 14 N.Y.3d 564, 570 n. 2, 904 N.Y.S.2d 255, 930 N.E.2d 176 [2010] ; People v. Rapp, 133 A.D.3d 979, 980, 20 N.Y.S.3d 663 [2015] ; People v. Jackson, 128 A.D.3d 1279, 1279, 9 N.Y.S.3d 739 [2015], lv. denied 26 N.Y.3d 930, 17 N.Y.S.3d 93, 38 N.E.3d 839 [2015] ), it is lacking in merit. Contrary to defendant's contention, the scheme to defraud offense charged in the SCI is plainly the same offense as that charged in the felony complaint, and there is no factual discrepancy between the two (see People v. Milton, 21 N.Y.3d 133, 136–137, 967 N.Y.S.2d 680, 989 N.E.2d 962 [2013] ; compare People v. Siminions, 112 A.D.3d 974, 975, 977 N.Y.S.2d 91 [2013], lv. denied 24 N.Y.3d 1088, 1 N.Y.S.3d 15, 25 N.E.3d 352 [2014] ). Accordingly, such count of the SCI charged an offense for which “defendant was held for action of a grand jury” (CPL 195.20 ), thus complying with the pertinent statutory requirement for waiving indictment and serving as a proper jurisdictional predicate for defendant's guilty plea (see People v. Milton, 21 N.Y.3d at 137, 967 N.Y.S.2d 680, 989 N.E.2d 962 ; People v. Waid, 26 A.D.3d 734, 735, 809 N.Y.S.2d 330 [2006], lv. denied 6 N.Y.3d 839, 814 N.Y.S.2d 87, 847 N.E.2d 384 [2006] ; People v. Verrone, 266 A.D.2d 16, 17, 698 N.Y.S.2d 8 [1999] ; see generally People v. Pierce, 14 N.Y.3d at 571, 904 N.Y.S.2d 255, 930 N.E.2d 176 ; People v. Menchetti, 76 N.Y.2d 473, 477, 560 N.Y.S.2d 760, 561 N.E.2d 536 [1990] ).¹ Further, by incorporating the elements of the crime by specific reference to the applicable statutory provision, the SCI “effectively charge[d] ... defendant with the commission of a particular crime” and afforded him “fair notice of the charges made against him” (People v. Ray, 71 N.Y.2d 849, 850, 527 N.Y.S.2d 740, 522 N.E.2d 1037 [1988] [internal quotation marks and citations omitted]; see People v. Kamburelis, 100 A.D.3d 1189, 1189–1190, 954 N.Y.S.2d 254 [2012] ; People v. McDuffie, 89 A.D.3d 1154, 1155, 932 N.Y.S.2d 228 [2011], lv. denied 19 N.Y.3d 964, 950 N.Y.S.2d 116, 973 N.E.2d 214 [2012] ). To the extent that defendant's argument is addressed to the factual sufficiency of the SCI, such claim is precluded by his guilty plea (see People v. Martinez, 106 A.D.3d 1379, 1380, 966 N.Y.S.2d 562 [2013], lv. denied 22 N.Y.3d 957, 977 N.Y.S.2d 188, 999 N.E.2d 553 [2013] ; People v. Morales, 66 A.D.3d 1083, 1084, 885 N.Y.S.2d 653 [2009] ; People v. Quinones, 51 A.D.3d 1226, 1227, 857 N.Y.S.2d 372 [2008], lv. denied 10 N.Y.3d 938, 862 N.Y.S.2d 345, 892 N.E.2d 411 [2008] ).

Nor are we persuaded by defendant's challenge to the summary denial of his motions to withdraw his respective guilty pleas. “Whether to permit a defendant to withdraw his or her plea of guilty is left to the sound discretion of County Court, and withdrawal will generally not be permitted absent some evidence of innocence, fraud or mistake in its inducement” (People v. Burns, 133 A.D.3d 1045, 1046, 20 N.Y.S.3d 669 [2015] [internal quotation marks and citations omitted]; see People v. Curry, 123 A.D.3d 1381, 1383, 999 N.Y.S.2d 591 [2014], lv. denied 25 N.Y.3d 950, 7 N.Y.S.3d 279, 30 N.E.3d 170 [2015] ; People v. Young, 112 A.D.3d 1068, 1069, 976 N.Y.S.2d 623 [2013], lv. denied 22 N.Y.3d 1204, 986 N.Y.S.2d 424, 9 N.E.3d 919 [2014] ). An evidentiary hearing will be required “only where the record presents a genuine question of fact as to the plea's voluntariness” (People v. Perkins, 125 A.D.3d 1045, 1046, 3 N.Y.S.3d 440 [2015] ; see People v. Brown, 14 N.Y.3d 113, 116, 897 N.Y.S.2d 674, 924 N.E.2d 782 [2010] ; People v. Trimm, 129 A.D.3d 1215, 1215–1216, 10 N.Y.S.3d 738 [2015] ; People v. Cole, 118 A.D.3d 1098, 1100, 987 N.Y.S.2d 247 [2014] ).

Here, the record demonstrates that the terms and conditions of the Montgomery County plea were extensively explained to defendant and the matter was twice adjourned to provide defendant additional time to consider the offer and discuss the matter with counsel. During the thorough and detailed plea colloquy that ensued, defendant acknowledged that he understood the consequences of pleading guilty, stated that he was satisfied with counsel's services and readily admitted to conduct constituting the relevant crime. When defendant stated that he was led to believe that the People would not pursue charges against his son if he accepted the plea offer and that his son's arrest two days earlier amounted to “a lot of pressure” with regard to his decision to plead guilty, Montgomery County Court immediately interjected and conducted an appropriate inquiry. Defendant then twice confirmed that no promises were made in connection with the plea other than those set forth on the record, that he had not been threatened, coerced or otherwise influenced into pleading guilty and that he was pleading guilty freely, voluntarily and because he was, in fact, guilty. Under such circumstances, Montgomery County Court was not required to hold a hearing to further inquire into the existence of any purported off-the-record promise with respect to defendant's son (see Matter of Benjamin S., 55 N.Y.2d 116, 120–121, 447 N.Y.S.2d 905, 432 N.E.2d 777 [1982] ; People v. Walker, 26 A.D.3d 797, 798, 810 N.Y.S.2d 270 [2006], lv. denied 6 N.Y.3d 854, 816 N.Y.S.2d 760, 849 N.E.2d 983 [2006] ; People v. Salvagni, 199 A.D.2d 680, 680, 605 N.Y.S.2d 125 [1993] ; People v. Sanchez, 184 A.D.2d 537, 538, 584 N.Y.S.2d 164 [1992], lv. denied 80 N.Y.2d 909, ...