People v. Hunter

• Decision Date: 12 September 2019
• Docket Number: 108650,107974
• Citation: 108 N.Y.S.3d 527,175 A.D.3d 1601
• Parties: The PEOPLE of the State of New York, Respondent, v. Tracy HUNTER, Also Known as Slim, Appellant.
• Court: New York Supreme Court — Appellate Division

175 A.D.3d 1601

108 N.Y.S.3d 527

The PEOPLE of the State of New York, Respondent,

v.Tracy HUNTER, Also Known as Slim, Appellant.

107974

108650

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

Decided and Entered: September 12, 2019

Calendar Date: August 22, 2019

Jeffrey L. Zimring, Albany, for appellant, and appellant pro se.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Devine, Aarons and Rumsey, JJ.

MEMORANDUM AND ORDER

Devine, J. Appeals (1) from a judgment of the Supreme Court (Milano, J.), rendered June 25, 2015 in Schenectady County, convicting defendant upon his plea of guilty of the crime of assault in the second degree, and (2) by permission, from an order of the County Court of Schenectady County (Sypniewski, J.), entered July 11, 2016, which denied defendant's motion pursuant to CPL 440.10 and 440.20 to vacate the judgment of conviction and set aside the sentence, without a hearing.

In satisfaction of a seven-count indictment, defendant pleaded guilty to assault in the second degree and waived his right to appeal. Defendant submitted a motion to withdraw his guilty plea – drafted pro se and adopted by defense counsel – arguing that he had received ineffective assistance of counsel. Supreme Court denied the motion. Thereafter, Supreme Court sentenced defendant, a second felony offender, to the agreed-upon prison term of three years to be followed by five years of postrelease supervision. The plea agreement also contemplated an award of restitution for the victim's uncovered medical expenses and, as calculated at sentencing, that award amounted to nearly $65,000. Defendant subsequently moved to vacate the judgment of conviction and set aside his sentence, which County Court denied without a hearing. Defendant appeals from the judgment of conviction and, by permission, from the order denying his CPL article 440 motion.

Initially, inasmuch as the felony complaint was superseded by an indictment, defendant's jurisdictional challenge to the former is academic (see People v. Layou, 159 A.D.3d 1413, 1413, 73 N.Y.S.3d 320 [2018], lv denied 31 N.Y.3d 1084, 79 N.Y.S.3d 105, 103 N.E.3d 1252 [2018] ; People v. Chianese, 41 A.D.3d 1168, 1169, 837 N.Y.S.2d 820 [2007], lv denied 9 N.Y.3d 1032, 852 N.Y.S.2d 17, 881 N.E.2d 1204 [2008] ). Defendant's guilty plea and/or his unchallenged appeal waiver foreclose many of the remaining arguments on his direct appeal, including those involving the sufficiency of the evidence before the grand jury (see People v. Greene, 171 A.D.3d 1407, 1408, 99 N.Y.S.3d 120 [2019] ; People v. Wilburn, 158 A.D.3d 894, 894–895, 71 N.Y.S.3d 181 [2018], lv denied 31 N.Y.3d 1123, 81 N.Y.S.3d 383, 106 N.E.3d 766 [2018] ) and the partial denial of his suppression motion (see People v. Feurtado, 172 A.D.3d 1620, 1621, 99 N.Y.S.3d 144 [2019] ; People v. Danielson, 170 A.D.3d 1430, 1431, 96 N.Y.S.3d 754 [2019], lv denied 33 N.Y.3d 1030, 102 N.Y.S.3d 515, 126 N.E.3d 165 [2019] ). His constitutional challenges to Penal Law § 70.45, to the extent that they are not indirect attacks upon the severity of his sentence that are precluded by his appeal waiver (see People v. Bailey, 157 A.D.3d 1133, 1134, 69 N.Y.S.3d 440 [2018], lv denied 31 N.Y.3d 981, 77 N.Y.S.3d 658, 102 N.E.3d 435 [2018] ; People v. La Mountain, 249 A.D.2d 584, 587, 671 N.Y.S.2d 763 [1998], lvs denied 92 N.Y.2d 855, 677 N.Y.S.2d 85, 699 N.E.2d 445 [1998] ), are unpreserved and do not warrant corrective action in the interest of justice (see People v. Graham, 93 N.Y.2d 934, 935, 693 N.Y.S.2d 502, 715 N.E.2d 504 [1999] ; People v. Corker, 67 A.D.3d 926, 926–927, 888 N.Y.S.2d 418 [2009], lv denied 14 N.Y.3d 886, 903 N.Y.S.2d 775, 929 N.E.2d 1010 [2010] ).

Defendant also takes issue with the restitution award in various respects. He first contends that his guilty plea was not knowingly, voluntarily and intelligently entered because he was not aware when he pleaded guilty that restitution could exceed $15,000. Although this argument survives his appeal waiver, defendant failed to preserve the issue in his postallocution motions, and the narrow exception to the preservation requirement does not apply (see People v. Miller, 126 A.D.3d 1233, 1234, 6 N.Y.S.3d 685 [2015], lv denied 25 N.Y.3d 1168, 15 N.Y.S.3d 299, 36 N.E.3d 102 [2015] ; People v. Small, 82 A.D.3d 1451, 1452, 918 N.Y.S.2d 755 [2011], lv denied 17 N.Y.3d 801, 929 N.Y.S.2d 109, 952 N.E.2d 1104 [2011] ). Defendant's challenge to the amount of the restitution award similarly survives his appeal waiver (see People v. Ortiz, 148 A.D.3d 1291, 1292, 48 N.Y.S.3d 834 [2017] ; People v. Gardner, 129 A.D.3d 1386, 1388, 12 N.Y.S.3d 353 [2015] ), but is unpreserved given his failure to request a restitution hearing and his ultimate agreement to the amount awarded to the victim at sentencing (see People v. Taft, 169 A.D.3d 1266, 1267, 94 N.Y.S.3d 726 [2019], lv denied 33 N.Y.3d 1074, 105 N.Y.S.3d 26, 129 N.E.3d 346 [2019] ; People v. Perry, 168 A.D.3d 1287, 1288, 91 N.Y.S.3d 811 [2019] ; People v. Miller, 126 A.D.3d at 1234, 6 N.Y.S.3d 685 ).

Turning to the appeal from the order denying the CPL article 440 motion, we reject defendant's contention that County Court erred in denying the motion without a hearing. "To demonstrate the existence of questions of fact requiring a hearing, a defendant is obliged to show that the nonrecord facts sought to be established are material and would entitle him or her to relief" ( People v. Jones, 161 A.D.3d 1311, 1313, 77 N.Y.S.3d 201 [2018] [internal quotation marks, brackets and citations omitted], lv denied 31 N.Y.3d 1118, 81 N.Y.S.3d 378, 106 N.E.3d 761 [2018] ; see People v. Satterfield, 66 N.Y.2d 796, 799, 497 N.Y.S.2d 903, 488 N.E.2d 834 [1985] ).

With regard to defendant's claims of ineffective assistance involving both record and nonrecord facts, he testified before the grand jury in the presence of his first attorney, who advised defendant beforehand not to do so and accurately warned him of the "rather limited" assistance to which he would be entitled if he did, and defendant does not allege that counsel provided ineffective assistance by refusing requests for advice or providing bad advice during the ensuing examination ( People v. Sutton, 43 A.D.3d 133, 136, 839 N.Y.S.2d 746 [2007], lv denied 9 N.Y.3d 1010, 850 N.Y.S.2d 398, 880 N.E.2d 884 [2007] ; see CPL 190.52[2] ; People v. English, 119 A.D.3d 706, 706, 988 N.Y.S.2d 697 [2014], lv denied 24 N.Y.3d 1043, 998 N.Y.S.2d 313, 23 N.E.3d 156 [2014] ; People v. Salvador, 176 Misc.2d 915, 916, 675 N.Y.S.2d 507 [Sup. Ct., Queens County 1998] ). With respect to his second attorney's failure to seek a Dunaway hearing, the attorney obtained suppression of almost all of defendant's statements to police on other grounds, and defendant did not demonstrate the absence of strategic or other legitimate explanations for the alleged shortcoming (see People v. Stahl, 141 A.D.3d 962, 966, 35 N.Y.S.3d 779 [2016], lv denied 28 N.Y.3d 1127, 51 N.Y.S.3d 23, 73 N.E.3d 363 [2016], cert denied ––– U.S. ––––, 138 S Ct 222, 199 L.Ed.2d 120 [2017] ). As to his argument regarding his second attorney's alleged conflict of interest, defendant offers nothing to show how "the conduct of his defense was in fact affected by" it ( People v. Alicea, 61 N.Y.2d 23, 31, 471 N.Y.S.2d 68, 459 N.E.2d 177 ...