People v. Franklin

• Decision Date: 12 January 2017
• Citation: 2017 N.Y. Slip Op. 00217,146 A.D.3d 1082,45 N.Y.S.3d 635
• Parties: The PEOPLE of the State of New York, Respondent, v. Arnayis FRANKLIN, also known as Artie, also known as Arnie, Appellant.
• Court: New York Supreme Court — Appellate Division

146 A.D.3d 1082

45 N.Y.S.3d 635

2017 N.Y. Slip Op. 00217

The PEOPLE of the State of New York, Respondent,

v.Arnayis FRANKLIN, also known as Artie, also known as Arnie, Appellant.

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

Jan. 12, 2017.

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

D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Before: EGAN JR., J.P., LYNCH, ROSE, CLARK and AARONS, JJ.

EGAN JR., J.P.

Appeal from a judgment of the County Court of Ulster County (McGinty, J.), rendered August 30, 2011, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

In September 2005, defendant was charged in an eight-count indictment with various drug-related offenses. Thereafter, in July 2006, defendant—in full satisfaction of the foregoing indictment—pleaded guilty to one count of Criminal possession of a controlled substance in the second degree and, in September 2006, was sentenced to the agreed-upon term of 10 years in prison followed by five years of postrelease supervision. Four years later, defendant filed a pro se CPL article 440 motion contending, among other things, that his sentence had been illegally imposed based upon a misapprehension as to the aggregate weight required to sustain his conviction under Penal Law § 220.18.¹ The People did not oppose this request and, in May 2011, County Court granted defendant's motion, vacated the plea and sentence and scheduled the matter for further proceedings. Defendant appeared before County Court on May 25, 2011, at which time he was assigned counsel and the matter was adjourned to afford counsel an opportunity to review defendant's file.²

In June 2011, defendant pleaded guilty to criminal possession of a controlled substance in the third degree—again in full satisfaction of the underlying indictment—in exchange for a prison term of seven years (subject to credit for time served) followed by two years of postrelease supervision. During the course of the plea colloquy, an extensive discussion was had with regard to whether defendant had a prior, valid felony conviction. Ultimately, the People agreed to treat defendant as a first felony offender, and no prior felony statement was filed. When defendant returned for sentencing in August 2011, he indicated that he wished to proceed pro se. Following a colloquy with defendant and assigned counsel, County Court granted defendant's request and thereafter sentenced him to the agreed-upon prison term.³ This appeal by defendant ensued.⁴

Defendant initially contends that the underlying indictment was jurisdictionally defective due to errors in the indictment number itself and in the list of charges contained on the indictment backer. "Although ... a jurisdictional defect in an indictment is not waived by a guilty plea and may be raised for the first time on appeal, ... not every defect in an indictment is a jurisdictional defect for these purposes. In essence, an indictment is jurisdictionally defective only if it does not effectively charge the defendant with the commission of a particular crime" (People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656 [1978] [internal citations omitted]; see People v. Cruz, 104 A.D.3d 1022, 1023, 960 N.Y.S.2d 741 [2013] ). Here, there is no question that the subject indictment, which incorporated by reference the statutory provisions applicable to the crimes charged therein, was sufficient to apprise defendant of the charges against him (see People v. Cruz, 104 A.D.3d at 1023–1024, 960 N.Y.S.2d 741 ; People v. Brown, 75 A.D.3d 655, 656, 903 N.Y.S.2d 825 [2010] ), and the typographical errors of which defendant now complains "constitute ... technical, nonjurisdictional defect[s] that [were] waived by defendant's guilty plea" (People v. Olmstead, 111 A.D.3d 1063, 1064, 975 N.Y.S.2d 359 [2013] ; see People v. Porath, 104 A.D.3d 1028, 1029, 960 N.Y.S.2d 748 [2013], lv. denied 21 N.Y.3d 1019, 971 N.Y.S.2d 501, 994 N.E.2d 397 [2013] ; People v. Slingerland, 101 A.D.3d 1265, 1266, 955 N.Y.S.2d 690 [2012], lv. denied 20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538 [2013] ).

As for the arguments made by defendant in his pro se brief, defendant cannot challenge County Court's decision granting his CPL article 440 motion and vacating his 2006 plea and sentence because, having successfully obtained the very relief he sought, defendant is not an aggrieved party within the meaning of CPLR 5511 (see generally People v. Baker, 131 A.D.2d 491, 491–492, 516 N.Y.S.2d 106 [1987], lv. denied 70 N.Y.2d 709, 519 N.Y.S.2d 1043, 513 N.E.2d 1311 [1987] ). With respect to defendant's ineffective assistance of counsel claim, defendant's present contentions—that counsel failed to properly investigate his case and provided inadequate or erroneous advice—implicate matters outside of the record and, as such, are more appropriately addressed in the context of a CPL article 440 motion (see People v. Clapper, 133 A.D.3d 1037, 1038, 20 N.Y.S.3d 452 [2015], lv. denied 27 N.Y.3d 995, 38 N.Y.S.3d 105, 59 N.E.3d 1217 [2016] ; People v. Alnutt, 107 A.D.3d 1139, 1144–1145, 968 N.Y.S.2d 634 [2013], lv. denied 22 N.Y.3d 1136, 983 N.Y.S.2d 495, 6 N.E.3d 614 [2014] ). To the extent that the balance of defendant's ineffective assistance of counsel claim impacts the voluntariness of his plea, such claim is unpreserved for our review in the absence of an appropriate postallocution motion (see People v. Horton, 140 A.D.3d 1525, 1525, 33 N.Y.S.3d 777 [2016] ; People v. Islam, 134 A.D.3d 1348, 1349, 21 N.Y.S.3d 648 [2015] ). "Further, the narrow exception to the preservation rule was not triggered here, as defendant did not make any statements during the plea allocution that negated an essential element of the crime or otherwise cast doubt upon his guilt" (People v. Perkins, 140 A.D.3d 1401, 1403, 33 N.Y.S.3d 584 [2016] [internal quotation marks and citations omitted] ).

Nor are we persuaded that County Court erred in granting defendant's request to proceed pro se at the time of sentencing. "A criminal defendant may be permitted to proceed pro se if the request is timely and unequivocal, there has been a knowing and intelligent waiver of the right to counsel, and defendant has not engaged in conduct that would interfere with a fair and orderly [proceeding]" (People v. Hamilton, 133 A.D.3d 1090, 1093, 20 N.Y.S.3d 676 [2015] [internal quotation marks and citations omitted]; see People v. Brooks, 140 A.D.3d 1780, 1781, 32 N.Y.S.3d 408 [2016] ). When faced with such a request, County Court must "engage[ ] in the requisite inquiry, examining defendant's education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver" (People v. Hamilton, 133 A.D.3d at 1093, 20 N.Y.S.3d 676 [internal quotation marks and citation omitted]; see People v. Brooks, 140 A.D.3d at 1781, 32 N.Y.S.3d 408). Here, defendant made a timely and unequivocal request to proceed pro se, in response to which County Court questioned defendant as to his legal knowledge and experience and inquired as to whether defendant was aware of the risks that self-representation might entail; defendant, in turn, reiterated his desire to proceed pro se. In addition to the information gleaned during the colloquy with defendant, County Court was aware that, despite a lack of formal education or training, defendant had prevailed on his pro se motion to vacate his prior conviction and sentence. Under these circumstances, we have no quarrel with County Court's decision to permit defendant to proceed pro se at the time of sentencing.

As a final matter, defendant argues that his already-completed sentence should be vacated due to the People's failure to file a prior felony statement pursuant to CPL 400.21. During the course of the plea colloquy, County Court inquired as to whether the instant offense was defendant's second felony offense. Defense counsel acknowledged that defendant had a prior felony conviction, but indicated that defendant was asserting "that the prior conviction cannot count as a predicate for this case because the original sentence was illegal." Upon further inquiry by County Court, defendant clarified that he was contending that the plea...