People v. Lapierre

• Decision Date: 24 June 2021
• Docket Number: 107554, 109733, 110062
• Citation: 195 A.D.3d 1301,150 N.Y.S.3d 810
• Parties: The PEOPLE of the State of New York, Respondent, v. Mark A. LAPIERRE, Appellant.
• Court: New York Supreme Court — Appellate Division

195 A.D.3d 1301

150 N.Y.S.3d 810

The PEOPLE of the State of New York, Respondent,

v.Mark A. LAPIERRE, Appellant.

107554, 109733, 110062

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

Calendar Date: May 27, 2021

Decided and Entered: June 24, 2021

Kelly M. Monroe, Albany, for appellants, and appellant pro se.

Andrew J. Wylie, District Attorney, Plattsburgh (Jamie Douthat of counsel), for respondent.

Before: Garry, P.J., Lynch, Clark, Aarons and Colangelo, JJ.

MEMORANDUM AND ORDER

Aarons, J. Appeals (1) from a judgment of the County Court of Clinton County (McGill, J.), rendered March 24, 2015, convicting defendant upon his pleas of guilty of the crimes of criminal sale of a controlled substance in the third degree (two counts) and conspiracy in the fourth degree, and (2) by permission, from an order of said court (Bruno, J.), entered September 7, 2017, which denied defendant's motion pursuant to CPL 440.20 to set aside the sentence, without a hearing, and (3) by permission, from an order of said court (Bruno, J.), entered January 3, 2018, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

In satisfaction of a six-count indictment stemming from the sale of heroin on two occasions, defendant pleaded guilty to two counts of criminal sale of a controlled substance in the third degree and conspiracy in the fourth degree. As part of the plea agreement, which satisfied all known, uncharged drug-related crimes, defendant was required to waive his right to appeal. At sentencing, defendant unsuccessfully orally moved, pro se, to withdraw his guilty plea, raising multiple claims, including that he had received ineffective assistance of counsel. County Court (McGill, J.) later denied defendant's written pro se motion to withdraw his plea, in a written decision, finding that the guilty plea had been knowing, voluntary and intelligent.¹ The court sentenced defendant, as a second felony offender, to the agreed-upon prison terms of 5½ years to be followed by two years of postrelease supervision (hereinafter PRS) on each criminal sale conviction, and 1½ to 3 years on the conspiracy conviction, all sentences to run concurrently. The court also imposed restitution for the controlled drug buys, surcharges and fines of $1,000 on each conviction, as contemplated in the agreement.

Defendant subsequently moved, pro se, to set aside his sentence pursuant to CPL 440.20 and, later, to vacate the judgment of conviction pursuant to CPL 440.10. County Court (Bruno, J.) denied both motions, without a hearing, in written decisions. Defendant appeals from the judgment of conviction and, by permission, from the orders denying his CPL article 440 motions.

Initially, we agree with defendant that his waiver of appeal is not valid. County Court (McGill, J.) failed to adequately advise him that the right to appeal was separate and distinct from the rights he was automatically forfeiting by pleading guilty and used overly-broad language regarding the scope of the waiver (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Although the record contains a written waiver apparently executed on the day of the plea allocution, it was overbroad and inaccurate (see People v. Bisono, 36 N.Y.3d 1013, 1017–1018, 140 N.Y.S.3d 433, 164 N.E.3d 239 [2020] ; People v. Thomas, 34 N.Y.3d 545, 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ).

To the extent that defendant's challenge to his guilty plea was preserved by his unsuccessful oral and written motion to withdraw his plea, it lacks merit.² Contrary to defendant's claim, the record reflects that, prior to the plea allocution, he was clearly advised of the terms of the plea agreement, including the counts to which he would be pleading guilty, the sentences to be imposed on each and that a period of PRS would be required, and he agreed to those terms unequivocally. The record also unambiguously reflects that defendant was aware that a prior plea offer, which came with a higher aggregate prison sentence, had been renegotiated by defense counsel and replaced by the current plea offer, which had different terms that were made clear to and accepted by him, including that he would enter a guilty plea to three counts. A review of the record establishes that defendant, in pleading guilty, made a "knowing, voluntary and intelligent choice among alternative courses of action" ( People v. Conceicao, 26 N.Y.3d 375, 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ). Accordingly, as defendant unequivocally pleaded guilty and admitted the factual allegations of the crimes, and because his litany of claims of coercion, fraud, innocence and mistake are unsupported or contradicted by the record, County Court did not abuse its discretion in denying his motion to withdraw his plea (see People v. Haffiz, 19 N.Y.3d 883, 884–885, 951 N.Y.S.2d 690, 976 N.E.2d 216 [2012] ; People v. Fiumefreddo, 82 N.Y.2d 536, 546–548, 605 N.Y.S.2d 671, 626 N.E.2d 646 [1993] ; People v. Walker, 173 A.D.3d 1561, 1562, 101 N.Y.S.3d 675 [2019] ).

To the extent that defendant argues that County Court erred in refusing to assign substitute counsel when, at sentencing, he moved to withdraw his guilty plea based in part on complaints regarding counsel, "he failed to demonstrate good cause for such substitution and we discern no abuse of discretion in the court's inquiry" and denial of the request ( People v. Blanford, 179 A.D.3d 1388, 1392, 118 N.Y.S.3d 294 [2020], lv denied 35 N.Y.3d 968, 125 N.Y.S.3d 13, 148 N.E.3d 477 [2020] ; see People v. Porto, 16 N.Y.3d 93, 99–100, 917 N.Y.S.2d 74, 942 N.E.2d 283 [2010] ). Moreover, defense counsel had no obligation to join defendant's pro se motions (see People v. Blanford, 179 A.D.3d at 1392, 118 N.Y.S.3d 294 ). Defendant did not, at any point during sentencing, request to proceed pro se and, instead, asked for permission to submit pro se motions following sentencing, which the court permitted. In defendant's subsequent written pro se motion to withdraw his guilty plea, he requested to proceed pro se on that motion and, after an inquiry, he was permitted to do so, and his motion to withdraw his plea was denied. Accordingly, defendant's right to proceed pro se was honored, and his request during the pro se inquiry for hybrid representation was properly denied (see People v. Rodriguez, 95 N.Y.2d 497, 501–502, 719 N.Y.S.2d 208, 741 N.E.2d 882 [2000] ).

Defendant further contends that County Court failed to comply with CPL 400.21(3) by not inquiring if he had received and reviewed a copy of the predicate offender statement. Defendant did not raise this procedural claim at sentencing and, thus, it is unpreserved for our review (see People v. Iorio, 188 A.D.3d 1352, 1354, 135 N.Y.S.3d 199 [2020], lv denied 36 N.Y.3d 1051, 140 N.Y.S.3d 894, 164 N.E.3d 981 [2021] ). In any event, defense counsel indicated at sentencing that he provided defendant with a copy of the statement. Although defendant briefly stated that he "would challenge" the predicate conviction and had an opportunity to do so prior to sentencing, he did not controvert any particular fact or allegation in the statement, as required, or request a hearing. As defendant pleaded guilty with the understanding that he would be sentenced as a second felony offender, and he does not now dispute that he was, in fact, a second felony offender, we find that there was substantial compliance with CPL 400.21 and that defendant was properly adjudicated to be a second felony offender (see People v. Tariq, 166 A.D.3d 1248, 1249, 88 N.Y.S.3d 275 [2018], lvs denied 32 N.Y.3d 1173, 1178, 97 N.Y.S.3d 610, 121 N.E.3d 238 [2019] ; People v. Hummel, 127 A.D.3d 1506, 1507, 7 N.Y.S.3d 701 [2015], lv denied 25 N.Y.3d 1202, 16 N.Y.S.3d 525, 37 N.E.3d 1168 [2015] ).

Defendant also challenges, on several grounds, the denial of his motion to set aside the sentence (see CPL 440.20 ).³ Although a motion pursuant to CPL 440.20 is the proper vehicle to challenge a sentence as "unauthorized, illegally imposed or otherwise invalid as a matter of law" ( CPL 440.20[1] ; see People v. Jurgins, 26 N.Y.3d 607, 612, 26 N.Y.S.3d 495, 46 N.E.3d 1048 [2015] ), County Court (Bruno, J.) correctly determined that defendant had not established any such basis upon which to set aside the sentence. The fines imposed on each drug-sale conviction were part of the agreed-upon disposition and were authorized (see Penal Law §§ 80.00, 80.15 ), and the $300 surcharge and crime victim assistance fee were mandatory (see Penal Law § 60.35[1][a][i] ; CPL 420.40[3] ). The court properly declined to consider the statutory constitutional challenges raised in the motion based upon, among other deficiencies, the failure to notify the Attorney General (see CPLR 1012[b] ).⁴ Defendant's challenge to the amount of the restitution ordered and failure to hold a hearing is unpreserved, as he was aware of the amount of restitution to be ordered at the time he entered the guilty plea and did not request a hearing or object to the amount at any point during sentencing (see People v. Horne, 97 N.Y.2d 404, 414 n. 3, 740 N.Y.S.2d 675, 767 N.E.2d 132 [2002] ; People v. Bonfey, 185 A.D.3d 1091, 1091–1092, 124 N.Y.S.3d 882 [2020] ).⁵ Restitution was authorized to the Clinton County District Attorney for the amount of funds expended in the purchase of drugs from defendant under the drug-sale counts to which he pleaded guilty, as documented in the victim impact statement (see Penal Law § 60.27[9] ). We have considered defendant's other contentions raised in this motion and, as none establishes that the sentence was unauthorized, illegally imposed or otherwise invalid as a matter of law, we find that the motion was properly denied without a hearing (see CPL 440.20[1] ; 440.30[4]).⁶

Defendant argues that he was denied the effective assistance of counsel and that County Court erred in denying his motion to withdraw his guilty plea and his motion...