People v. Johnson

• Decision Date: 28 March 2013
• Citation: 962 N.Y.S.2d 459,104 A.D.3d 1057,2013 N.Y. Slip Op. 02110
• Parties: The PEOPLE of the State of New York, Respondent, v. Jerald JOHNSON, Appellant.
• Court: New York Supreme Court — Appellate Division

104 A.D.3d 1057
962 N.Y.S.2d 459
2013 N.Y. Slip Op. 02110

The PEOPLE of the State of New York, Respondent,
v.
Jerald JOHNSON, Appellant.

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

March 28, 2013.

Aaron A. Louridas, Delmar, for appellant.

P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, STEIN and SPAIN, JJ.

LAHTINEN, J.

[104 A.D.3d 1057]Appeal, by permission, from an order of the County Court of Albany County (Breslin, J.), entered June 9, 2010, which denied defendant's motion pursuant to CPL article 440 to, among other things, vacate the judgment convicting him of the crimes of criminal possession of a controlled substance in [104 A.D.3d 1058]the third degree and criminal sale of a controlled substance in the third degree, without a hearing.

After cocaine was discovered in late February 2009 in a residence shared by defendant and his girlfriend, they were both charged in a multicount indictment in March 2009, which included a top count of criminal possession of a controlled substance in the third degree alleging that the seized cocaine weighed 16 grams.¹ Defendant was later charged in a separate indictment in May 2009 with two counts of criminal sale of a controlled substance in the third degree regarding alleged sales of cocaine in October 2008 and February 2009. The indictments were consolidated for trial and, in July 2009, defendant pleaded guilty to the first count from each indictment and was sentenced to concurrent

[962 N.Y.S.2d 460]

prison terms of 6 1/2 years followed by three years of postrelease supervision. Evidence at his girlfriend's trial (which reportedly resulted in her acquittal) revealed that the cocaine seized at their residence actually weighed only 11.18 grams. Defendant moved pursuant to CPL article 440 to vacate his judgment of conviction alleging, among other things, that he had not received the effective assistance of counsel in that he agreed to the plea only after his counsel had affirmatively represented to him that he had independently verified through testing that the weight of the cocaine was 16 grams when, in fact, no such independent test was ever conducted. County Court denied defendant's motion without a hearing and he now appeals.

Although defendant waived his right to appeal as part of the plea, he contends that ineffective assistance of counsel impacted the voluntariness of his plea and, as such, the issue survives his...