People v. Griffin

• Decision Date: 26 June 2019
• Docket Number: S.C.I. Nos. 14-01294, 15-00501,2016–10989,2016–10988
• Citation: 103 N.Y.S.3d 591,173 A.D.3d 1203
• Parties: The PEOPLE, etc., Respondent, v. Timothy GRIFFIN, Appellant.
• Court: New York Supreme Court — Appellate Division

173 A.D.3d 1203
103 N.Y.S.3d 591

The PEOPLE, etc., Respondent,
v.
Timothy GRIFFIN, Appellant.

2016–10988
2016–10989
S.C.I. Nos. 14-01294, 15-00501

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

Submitted - March 8, 2019
June 26, 2019

Clement S. Patti, Jr., White Plains, NY, for appellant, and appellant pro se.

Letitia James, Attorney General, New York, N.Y. (Lisa Ellen Fleischmann and Dennis A. Rambaud of counsel), for respondent.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

173 A.D.3d 1203

ORDERED that the judgments are affirmed.

The defendant's contention that his pleas of guilty were not knowingly, voluntarily, and intelligently entered is unpreserved for appellate review, since he did not move to withdraw his

173 A.D.3d 1204

pleas prior to the imposition of sentences (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Pleitez–Raymundo, 160 A.D.3d 902, 71 N.Y.S.3d 886 ; People v. Spencer, 149 A.D.3d 983, 52 N.Y.S.3d 430 ). Further, the narrow exception to the preservation requirement does not apply here, because the defendant's plea allocutions did not cast significant doubt upon his guilt, negate an essential element of the crimes, or call into question the voluntariness of the pleas (see People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Coleman, 164 A.D.3d 518, 77 N.Y.S.3d 884 ). In any event, the record of the plea proceedings demonstrates that the defendant's

103 N.Y.S.3d 594

pleas of guilty were knowingly, voluntarily, and intelligently entered (see People v. Coleman, 164 A.D.3d at 519, 77 N.Y.S.3d 884 ).

The defendant's contention that he was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and, thus, constitutes a "mixed claim of ineffective assistance" ( People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386 ; see People v. Evans, 16 N.Y.3d 571, 575 n.2, 925 N.Y.S.2d 366, 949 N.E.2d 457 ). Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal (see People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ). To the extent that the defendant contends that the Supreme Court erred in denying, without a hearing, that branch of his CPL 440.10 motion which was premised upon the alleged ineffective assistance of counsel, that contention is not properly before this Court on direct appeal from the judgments (see People v. Banner, 122 A.D.3d 641, 641, 994 N.Y.S.2d 424 ).

The defendant's contention that the Attorney General lacked authority to prosecute these actions pursuant to Executive Law § 63(3) was not forfeited by his pleas of guilty nor is it precluded by his valid waiver of his right to appeal (see People v. Codina, 297 A.D.2d 539, 539, 747 N.Y.S.2d 209 ). Nevertheless, the defendant's failure to raise this issue in the Supreme Court precludes review of his contention on direct appeal. "The preservation requirement serves the ... purpose of alerting the adverse party of the need to develop a record for appeal" ( People v. Hunter, 17 N.Y.3d 725, 728, 926 N.Y.S.2d 401, 950 N.E.2d 137 ). Although a jurisdictional defect need not be preserved, "[t]his does not ... dispense with the need for a factual record sufficient to permit appellate review" ( People v. Kinchen, 60 N.Y.2d 772, 773–774, 469 N.Y.S.2d 680, 457 N.E.2d 786 ). "[T]he lack of an adequate record bars review on direct appeal not only where vital evidence is plainly absent ... but wherever

173 A.D.3d 1205

the record falls short of establishing conclusively the merit of the defendant's claim" ( People v. McLean, 15 N.Y.3d 117, 121, 905 N.Y.S.2d 536, 931 N.E.2d 520 ). Since the defendant here failed to raise any challenge in the Supreme Court to the Attorney General's authority to prosecute these actions, the Attorney General was not alerted to the need to establish its authority, and no record on this issue was made (see People v. Hunter, 17 N.Y.3d at 728, 926 N.Y.S.2d 401, 950 N.E.2d 137 ; People v. Gilmour, 98 N.Y.2d 126, 129, 746 N.Y.S.2d 114, 773 N.E.2d 479 ). Accordingly, the record is insufficient to permit review of this contention on direct appeal (see People v. McLean, 15 N.Y.3d at 121, 905 N.Y.S.2d 536, 931 N.E.2d 520 ; People v. Kinchen, 60 N.Y.2d at 773–774, 469 N.Y.S.2d 680, 457 N.E.2d 786 ; People v. Cubero, 160 A.D.3d 1298, 1299, 75 N.Y.S.3d 658 ).

The defendant's contention that the superior court informations both contained duplicitous counts was forfeited by his pleas of guilty (see People v. Call, 162 A.D.3d 1063, 1064, 79 N.Y.S.3d 283 ; People v. Jackson, 129 A.D.3d 1342, 1342–1343, 10 N.Y.S.3d 368 ; People v. Vega, 268 A.D.2d 686, 701 N.Y.S.2d 483 ; People v. Branch, 73 A.D.2d 230, 235, 426 N.Y.S.2d 291 ).

The defendant's challenges to the factual specificity of the counts charged in

103 N.Y.S.3d 595

each superior court information, including the lack of a more precise date or range of dates on which each crime is alleged to have occurred, are nonjurisdictional, and were forfeited by his pleas of guilty and, in any event, are foreclosed by his valid waiver of his right to appeal (see People v. Guerrero, 28 N.Y.3d 110, 116–117, 42 N.Y.S.3d 80, 65 N.E.3d 51 ; People v. Morris, 61 N.Y.2d 290, 293, 473 N.Y.S.2d 769, 461 N.E.2d 1256 ; People v. Brice, 146 A.D.3d 1152, 46 N.Y.S.3d 282 ; People v....