People v. Devino

• Citation: 973 N.Y.S.2d 372,110 A.D.3d 1146,2013 N.Y. Slip Op. 06739
• Parties: The PEOPLE of the State of New York, Respondent, v. Nicholas R. DEVINO, Appellant.
• Decision Date: 17 October 2013
• Court: New York Supreme Court Appellate Division

110 A.D.3d 1146

973 N.Y.S.2d 372

2013 N.Y. Slip Op. 06739

The PEOPLE of the State of New York, Respondent,

v.Nicholas R. DEVINO, Appellant.

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

Oct. 17, 2013.

Robert M. Winn, Granville, for appellant.

Kevin C. Kortright, District Attorney, Fort Edward (Andrew J. Proler of counsel), for respondent.

Before: STEIN, J.P., McCARTHY, SPAIN and EGAN JR., JJ.

SPAIN, J.

Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered December 20, 2012, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

A Washington County grand jury handed up a four-count sealed indictment in October 2011 charging defendant with criminal sale and possession of controlled substances occurring in September and November 2010. An arrest warrant was issued and provided to the State Police, who for well over six months were reportedly unable to locate defendant, who had relocated, until he was arrested during a traffic stop in Chautauqua County, where he had been residing. He was arraigned on the indictment on June 14, 2012. Defendant retained new counsel, who made various omnibus motions.¹ Defendant again retained new counsel and ultimately entered a guilty plea to criminal possession of a controlled substance in the third degree. He waived his right to appeal during the plea colloquy, orally and in a written waiver signed in open court. Defendant later moved to withdraw his plea, arguing that his statutory speedy trial rights had been violated by the postindictment delay ( seeCPL 30.30 [1] [a] ). Defendant also contended that prior trial counsel had been ineffective in failing to make a pretrial motion to dismiss the indictment on this ground, rendering his plea involuntary and invalid. County Court denied defendant's motion and imposed the agreed-upon sentence of three years in prison with two years of postrelease supervision. Defendant now appeals.

“By pleading guilty [and voluntarily waiving his appeal rights], defendant is precluded from [directly] raising his claims that he was denied his CPL 30.30 statutory right to a speedy trial” ( People v. Irvis, 90 A.D.3d 1302, 1303, 935 N.Y.S.2d 371 [2011],lv. denied19 N.Y.3d 962, 950 N.Y.S.2d 114, 973 N.E.2d 212 [2012];see People v. O'Brien, 56 N.Y.2d 1009, 1010, 453 N.Y.S.2d 638, 439 N.E.2d 354 [1982];People v. Slingerland, 101 A.D.3d 1265, 1267, 955 N.Y.S.2d 690 [2012],lv. denied20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538 [2013];People v. Cain, 24 A.D.3d 889, 890, 806 N.Y.S.2d 260 [2005],lv. denied7 N.Y.3d 753, 819 N.Y.S.2d 878, 853 N.E.2d 249 [2006] ) and, further, this statutory claim was not preserved by a pretrial motion to dismiss the indictment on this ground ( seeCPL 210.20 [2]; People v. Garcia, 33 A.D.3d 1050, 1051, 822 N.Y.S.2d 322 [2006],lv. denied9 N.Y.3d 844, 840 N.Y.S.2d 770, 872 N.E.2d 883 [2007] ). However, defendant also argues—as he specifically alleged in his motion to withdraw his plea—that he would not have entered a guilty plea had counsel advised him that he had a meritorious speedy trial claim, which he argues he possesses, and that counsel's failure to move to dismiss the indictment on this basis constituted ineffective assistance.

While a claim of ineffective assistance of counsel is generally foreclosed by a valid appeal waiver, such as defendant executed here, such a claim survives that waiver to the extent that a defendant alleges that counsel's ineffectiveness impacted upon the voluntariness of his or her guilty plea ( see People v. Trombley, 91 A.D.3d 1197, 1201, 937 N.Y.S.2d 665 [2012],lv. denied21 N.Y.3d 914, 966 N.Y.S.2d 366, 988 N.E.2d 895 [2013];People v. Garland, 69 A.D.3d 1122, 1123, 891 N.Y.S.2d 921 [2010],lv. denied14 N.Y.3d 887, 903 N.Y.S.2d 776, 929 N.E.2d 1011 [2010];People v. Williams, 6 A.D.3d 746, 748, 776 N.Y.S.2d 329 [2004],lv. denied3 N.Y.3d 650, 782 N.Y.S.2d 421, 816 N.E.2d 211 [2004];see also People v. Marshall, 66 A.D.3d 1115, 1116, 887 N.Y.S.2d 308 [2009];contrast People v. Lane, 1 A.D.3d 801, 802–803, 767 N.Y.S.2d 504 [2003],lv. denied2 N.Y.3d 742, 778 N.Y.S.2d 467, 810 N.E.2d 920 [2004] [the defendant entered guilty plea/appeal waiver while omnibus motion raising statutory speedy trial claim was pending, thus precluding that claim as well as the issue of counsel's ineffectiveness for failing to pursue it, as the claim did not impact the voluntariness of the plea] ). Here, defendant's ineffectiveness of counsel claim was preserved by his motion to withdraw his plea and adequately alleges that it impacted the voluntariness of his plea and appeal waiver, so as to survive both ( see People v. Johnson, 288 A.D.2d 501, 502, 732 N.Y.S.2d 137 [2001];cf. People v. Obert, 1 A.D.3d 631, 632, 766 N.Y.S.2d 264 [2003],lv. denied2 N.Y.3d 764, 778 N.Y.S.2d 782, 811 N.E.2d 44 [2004] ). Thus, we address defendant's speedy trial claim in the context of ascertaining whether he was deprived of meaningful representation, mindful that “[a] single error of failing to raise a meritorious speedy trial claim [may be] sufficiently egregious to amount to ineffective assistance of counsel” ( People v. Garcia, 33 A.D.3d at 1052, 822 N.Y.S.2d 322;see People v. Obert, 1 A.D.3d at 632, 766 N.Y.S.2d 264;People v. Johnson, 288 A.D.2d at 502, 732 N.Y.S.2d 137).

The People concede that they were not ready for trial within six months after the commencement of this felony criminal action on October 20, 2011, the date on which the indictment was filed ( seeCPL 1.20[16] ); indeed, they did not announce their readiness for trial until June 14, 2012, ² when defendant was arraigned on the indictment, almost eight months after commencement ( seeCPL 30.30[1][a]; People v. Farkas, 16 N.Y.3d 190, 193, 919 N.Y.S.2d 488, 944 N.E.2d 1127 [2011] ). Thus, had counsel made a pretrial motion to dismiss the indictment on this ground, defendant would have been found to have carried his initial burden of demonstrating that the People declared their readiness for trial after the statutory six-month period, thereby shifting the burden to the People to demonstrate that sufficient periods of the delay were excludable ( see People v. Cortes, 80 N.Y.2d 201, 207 n. 3, 590 N.Y.S.2d 9, 604 N.E.2d 71 [1992];People v. Robinson, 67 A.D.3d 1042, 1044, 888 N.Y.S.2d 280 [2009],lv. denied13 N.Y.3d 910, 895 N.Y.S.2d 324 [2009];People v. St. Louis, 41 A.D.3d 897, 898, 838 N.Y.S.2d 215 [2007] ). In response, in opposing defendant's motion to withdraw his guilty plea, the People argued that they were ready for trial on a timely basis on the ground that the postindictment delay here would be excluded by statute in calculating the period in which they were required to be ready for trial, as it was attributable to defendant's “absence or unavailability,” ³ given that his “location [was] unknown” during that period and “[could] [ ]not be determined by due diligence” ( CPL 30.30[4][c][i]; see People v. Luperon, 85 N.Y.2d 71, 77–78, 623 N.Y.S.2d 735, 647 N.E.2d 1243 [1995];People v. Brossoit, 256 A.D.2d 919, 919–920, 682 N.Y.S.2d 273 [1998] ).

The determination of “whether the People have exercised diligence in locating an individual is a mixed question of law and fact” ( People v. Luperon, 85 N.Y.2d at 78, 623 N.Y.S.2d 735, 647 N.E.2d 1243) and, “although minimal efforts are not sufficient to satisfy due diligence” ( People v. Grey, 259 A.D.2d 246, 248, 699 N.Y.S.2d 147 [1999],lv. denied94 N.Y.2d 880, 705 N.Y.S.2d 12, 726 N.E.2d 489 [2000] ), “the police are not obliged to search for a defendant indefinitely as long as they exhaust all reasonable investigative leads as to his [or her] whereabouts” ( People v. Delaronde, 201 A.D.2d 846, 848, 608 N.Y.S.2d 338 [1994] [emphasis added] ). Defendant averred that during the relevant time period, he had—in early 2011—moved and leased an apartment and resided in the Village of Silver Creek, Chautauqua County, an address he registered with the County Clerk's office, the Department of Motor Vehicles, state and federal taxing authorities, the State Child Support Processing Center, the United States Postal Service, the local utility company, and the community college he attended, with documentation provided. In response to defendant's motion to withdraw his plea, the People submitted only an affidavit of an Assistant District Attorney, acknowledging that the State Police received the arrest warrant for defendant the day he was indicted and indicating that the State Police “commenced [unspecified] efforts” to locate defendant and were aware he had moved away; the People did not detail any specific efforts undertaken to locate defendant or submit any documentation. The People merely stated, in conclusory fashion, that while defendant's relocation to another area of the state “remained within the jurisdiction of the New York State Police,” it was “outside the assignment zone of the [assigned State Police] investigating unit and, therefore,...