People v. Howe

• Decision Date: 04 May 2017
• Citation: 150 A.D.3d 1321,54 N.Y.S.3d 190
• Parties: The PEOPLE of the State of New York, Respondent, v. Travis HOWE, Appellant.
• Court: New York Supreme Court — Appellate Division

150 A.D.3d 1321
54 N.Y.S.3d 190

The PEOPLE of the State of New York, Respondent,
v.
Travis HOWE, Appellant.

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

May 4, 2017.

54 N.Y.S.3d 191

Susan Patnode, Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), for appellant.

Mary E. Rain, District Attorney, Canton (Matthew L. Peabody of counsel), for respondent.

Before: McCARTHY, J.P., EGAN JR., LYNCH, DEVINE and CLARK, JJ.

McCARTHY, J.P.

Appeals (1) from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered December 3, 2012, convicting defendant upon his plea of guilty of the crime of robbery in the first degree, and (2) by permission, from an order of said court, entered February 5, 2016, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Defendant was charged by indictment with robbery in the first degree and grand larceny in the fourth degree stemming from his participation in a March 2011 armed robbery of a store with Michael Wells. Wells was convicted for this crime and thereafter implicated defendant and testified at the grand jury that handed up the indictment against defendant. After the jury was sworn at defendant's trial, defendant pleaded guilty to robbery in the first degree pursuant to a plea agreement that included a waiver of appeal. The guilty plea also satisfied other uncharged property crimes, a jailhouse assault charge and potential contraband charges and required that defendant admit or cooperate in the prosecution of those crimes. Consistent with that agreement, County Court imposed the agreed-upon prison sentence of 12 years with five years of postrelease supervision. In 2015, defendant moved to vacate the judgment of conviction pursuant to CPL 440.10, which was denied without a hearing. He now appeals from the judgment of conviction and, with permission, from the order denying his motion to vacate.

Defendant's sole contention on direct appeal is that the agreed-upon sentence is harsh and excessive. Contrary to his claim, the record reflects that his combined oral and written waiver of appeal was knowing, voluntary and intelligent, precluding this challenge (see People v. Sanders, 25 N.Y.3d 337, 339–341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2016] ; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2009] ; People v. Toledo, 144 A.D.3d 1332, 1332–1333, 40 N.Y.S.3d 680 [2016] ). The minutes of the plea proceedings reflect that defendant was advised that an appeal waiver was a condition of the plea, he indicated that he understood and voluntarily agreed to the terms of the plea and the waiver, and he was expressly advised that the waiver of his right to appeal is separate and distinct from the rights that he automatically forfeited by his guilty plea (see People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Belile, 137 A.D.3d 1460, 1461, 27 N.Y.S.3d 738 [2016] ). Defendant then signed a written waiver of appeal in open court that outlined the issues that survive the appeal waiver and otherwise waived "any aspect of this matter" and specifically waived any right to argue that the sentence is harsh or excessive. The written waiver, like the oral colloquy, also reflected that defendant had sufficient time to discuss the waiver with counsel. As we are persuaded that defendant understood and voluntarily agreed to waive his right to appeal, he forfeited any challenge to the severity of the sentence (see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006] ;

54 N.Y.S.3d 192

People v. Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Mann, 140 A.D.3d 1532, 1533, 33 N.Y.S.3d 779 [2016] ).

We further find that defendant's motion to vacate the judgment was properly denied without a hearing (see CPL 440.30[4][d] ). Defendant's ineffective assistance of counsel claim is premised solely upon the allegation in his affidavit that defense counsel advised him, during the plea allocution, to provide untruthful responses and lie about his involvement in the underlying robbery. While defendant initially equivocated during the plea allocution regarding the nature of his involvement in the robbery, after conferring with counsel, defendant unreservedly set forth and admitted, under oath, his specific role in helping Wells commit this robbery, and he repeatedly assured County Court that he had assisted in this crime. Given that defendant's allegations on the motion are contradicted by his sworn account and "unsupported by any other affidavit or evidence" and "there is no reasonable possibility that such allegations are...