People v. Lewis, 104495.

CourtNew York Supreme Court Appellate Division
Writing for the CourtLAHTINEN, J.P.
Citation30 N.Y.S.3d 387,2016 N.Y. Slip Op. 03215,138 A.D.3d 1346
Docket Number104495.
Decision Date28 April 2016
PartiesThe PEOPLE of the State of New York, Respondent, v. Thomas LEWIS, Appellant.

138 A.D.3d 1346
30 N.Y.S.3d 387
2016 N.Y. Slip Op. 03215

The PEOPLE of the State of New York, Respondent,
v.
Thomas LEWIS, Appellant.

104495.

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

April 28, 2016.


30 N.Y.S.3d 387

James E. Long, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant, and appellant pro se.

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

30 N.Y.S.3d 388

Before: LAHTINEN, J.P., McCARTHY, GARRY, ROSE and MULVEY, JJ.

LAHTINEN, J.P.

138 A.D.3d 1346

Appeals (1) from a judgment of the County Court of Albany County (Breslin, J.), rendered May 13, 2010, convicting defendant upon his plea of guilty of the crime of assault in the first degree, and (2) by permission, from an order of the Supreme Court (Breslin, J.), entered January 30, 2014 in Albany County, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Defendant pleaded guilty to assault in the first degree in satisfaction of three counts charged in an indictment stemming from his participation in the kidnapping and vicious beating of

138 A.D.3d 1347

a young woman in May 2009. Consistent with the plea agreement that also contemplated a waiver of appeal, defendant was sentenced as a second felony offender to a prison term of 22 years to be followed by five years of postrelease supervision.1 Defendant's subsequent pro se motion to vacate the judgment was denied in a written decision, without a hearing. Defendant now appeals from the judgment of conviction and, with permission, from the order denying his motion to vacate.

Initially, although an appeal waiver was recited as a term of the plea agreement, a review of the record does not establish that defendant's appeal waiver was knowing, voluntary and intelligent (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). There was no written appeal waiver and, when County Court elicited an oral waiver from defendant, it did not explain its meaning or ascertain that he had specifically discussed the waiver or the appellate process with counsel (see People v. Proper, 133 A.D.3d 918, 919, 18 N.Y.S.3d 793 [2015] ; People v. Ashlaw, 126 A.D.3d 1236, 1237, 5 N.Y.S.3d 614 [2015] ). As the court's brief inquiry was insufficient “to ensure that defendant grasped the minimal information pertaining to the appeal waiver” (People v. Bradshaw, 18 N.Y.3d 257, 260, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ; accord People v. Anderson, 129 A.D.3d 1385, 1385, 10 N.Y.S.3d 903 [2015], lv. denied 26 N.Y.3d 965, 18 N.Y.S.3d 601, 40 N.E.3d 579 [2015] ), it is not enforceable. Nonetheless, defendant's challenge to his guilty plea as involuntary was not raised in an appropriate postallocution motion to withdraw his plea (see CPL 220.60[3] ), so it is unpreserved for our review on his direct appeal (see People v. Atkinson, 124 A.D.3d 1149, 1150, 2 N.Y.S.3d 687 [2015], lv. denied 25 N.Y.3d 949, 7 N.Y.S.3d 278, 30 N.E.3d 169 [2015] ). Defendant made no statements during the allocution that negated an essential element of the crime or cast doubt on his guilt so as to trigger the narrow exception to the preservation rule (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Burritt, 127 A.D.3d 1433, 1434, 6 N.Y.S.3d 806 [2015] ). In any event, contrary to his claim, a factual recitation was not required and his unequivocal responses to the court's detailed questions were sufficient to establish his guilt (see People v. Rouse, 119 A.D.3d 1161, 1163, 989 N.Y.S.2d 395 [2014] ).

With regard to defendant's remaining claims, including those raised in his pro se briefs, we have reviewed them and find that none has merit. His challenge to the

30 N.Y.S.3d 389

count of the indictment to which he pleaded guilty as duplicitous is not preserved

138 A.D.3d 1348

for our review (see People v. Allen, 24 N.Y.3d 441, 449–450, 999 N.Y.S.2d 350, 24 N.E.3d 586 [2014] )2 and, in any event, it was waived by his guilty plea (see People v. Jackson, 129 A.D.3d 1342, 1342–1343, 10 N.Y.S.3d 368 [2015] ; People v. Vega, 268 A.D.2d 686, 687, 701 N.Y.S.2d 483 [2000], lv. denied 95 N.Y.3d 839, 713 N.Y.S.2d 146, 735 N.E.2d 426 [2000] ). We have previously rejected the claim that Albany County did not have geographic jurisdiction over this assault (see People v. White, 104 A.D.3d 1056, 1057, 961 N.Y.S.2d 603 [2013], lvs. denied 21 N.Y.3d 1018, 1021, 971 N.Y.S.2d 500, 503, 994 N.E.2d 396, 399 [2013] ; CPL 20.40[1] ), and his argument regarding the sufficiency of the evidence presented to the grand jury is also precluded by his guilty plea (see People v. Hansen, 95 N.Y.2d 227, 231–232, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ; People v. Howard, 119 A.D.3d 1090, 1091, 988 N.Y.S.2d 726 [2014], lv. denied 24 N.Y.3d 961, 996 N.Y.S.2d 221, 20 N.E.3d 1001 [2014] ).3 While defendant may challenge the agreed-upon sentence as harsh and excessive given the invalid appeal waiver (see People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ), it is devoid of merit in view of the unspeakable brutality of his crime (see People v. White, 104 A.D.3d at 1057, 961 N.Y.S.2d 603 ), committed while he was on parole for a manslaughter conviction.

We next turn to the denial of defendant's motion to vacate the judgment of conviction, which is supported solely by defendant's own affidavit. The motion was premised primarily upon the assertion that he was deprived of the effective assistance of counsel due to her failure to make pretrial motions and to move to dismiss the indictment on various grounds. However, the “[f]ailure to request a suppression hearing or to make a pretrial motion does not, by itself, constitute ineffective assistance, particularly in the absence of any basis upon which to conclude that a defendant had a colorable claim or that counsel's actions were not premised upon a legitimate strategy” (People v. Vonneida, 130 A.D.3d 1322, 1322–1323, 13 N.Y.S.3d 708 [2015], lv. denied 26 N.Y.3d 1093, 23 N.Y.S.3d 650, 44 N.E.3d 948 [2015] ; see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698...

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17 practice notes
  • People v. Kates, 638
    • United States
    • New York Supreme Court Appellate Division
    • 15 June 2018
    ...§ 70.00[2][a]; [3][a][i] ), and nothing in the record casts doubt on the apparent effectiveness of defense counsel (see People v. Lewis, 138 A.D.3d 1346, 1348–1349, 30 N.Y.S.3d 387 [3d Dept. 2016], lv denied 28 N.Y.3d 1073, 47 N.Y.S.3d 232, 69 N.E.3d 1028 [2016] ; People v. Loomis, 256 A.D.......
  • People v. Kelsey, 110652
    • United States
    • New York Supreme Court Appellate Division
    • 3 July 2019
    ...and citations omitted], 107 N.Y.S.3d 155 lv denied 27 N.Y.3d 1156, 39 N.Y.S.3d 389, 62 N.E.3d 129 [2016] ; see People v. Lewis , 138 A.D.3d 1346, 1348, 30 N.Y.S.3d 387 [2016], lv denied 28 N.Y.3d 1073, 47 N.Y.S.3d 232, 69 N.E.3d 1028 [2016] ). Defendant first contends that defense counsel i......
  • People v. Jones, 108800
    • United States
    • New York Supreme Court Appellate Division
    • 10 May 2018
    ...N.E.2d 895 [2013] ). The record belies defendant's assertion—supported solely by his own self-serving affidavit (see People v. Lewis, 138 A.D.3d 1346, 1348, 30 N.Y.S.3d 387 [2016], lv denied 28 N.Y.3d 1073, 47 N.Y.S.3d 232, 69 N.E.3d 1028 [2016] ; People v. Brandon, 133 A.D.3d at 904, 20 N.......
  • People v. Oddy
    • United States
    • New York Supreme Court Appellate Division
    • 17 November 2016
    ...which we have considered, and are therefore foreclosed for review in a CPL 440.10 motion (see CPL 440.10[2][c] ; People v. Lewis, 138 A.D.3d 1346, 1348 n. 3, 30 N.Y.S.3d 387 [2016] ; People v. Rebelo, 137 A.D.3d 1315, 1316, 27 N.Y.S.3d 699 [2016], lv. denied 28 N.Y.3d 936, 40 N.Y.S.3d 363, ......
  • Request a trial to view additional results
17 cases
  • People v. Kates, 638
    • United States
    • New York Supreme Court Appellate Division
    • 15 June 2018
    ...§ 70.00[2][a]; [3][a][i] ), and nothing in the record casts doubt on the apparent effectiveness of defense counsel (see People v. Lewis, 138 A.D.3d 1346, 1348–1349, 30 N.Y.S.3d 387 [3d Dept. 2016], lv denied 28 N.Y.3d 1073, 47 N.Y.S.3d 232, 69 N.E.3d 1028 [2016] ; People v. Loomis, 256 A.D.......
  • People v. Kelsey, 110652
    • United States
    • New York Supreme Court Appellate Division
    • 3 July 2019
    ...and citations omitted], 107 N.Y.S.3d 155 lv denied 27 N.Y.3d 1156, 39 N.Y.S.3d 389, 62 N.E.3d 129 [2016] ; see People v. Lewis , 138 A.D.3d 1346, 1348, 30 N.Y.S.3d 387 [2016], lv denied 28 N.Y.3d 1073, 47 N.Y.S.3d 232, 69 N.E.3d 1028 [2016] ). Defendant first contends that defense counsel i......
  • People v. Jones, 108800
    • United States
    • New York Supreme Court Appellate Division
    • 10 May 2018
    ...N.E.2d 895 [2013] ). The record belies defendant's assertion—supported solely by his own self-serving affidavit (see People v. Lewis, 138 A.D.3d 1346, 1348, 30 N.Y.S.3d 387 [2016], lv denied 28 N.Y.3d 1073, 47 N.Y.S.3d 232, 69 N.E.3d 1028 [2016] ; People v. Brandon, 133 A.D.3d at 904, 20 N.......
  • People v. Oddy
    • United States
    • New York Supreme Court Appellate Division
    • 17 November 2016
    ...which we have considered, and are therefore foreclosed for review in a CPL 440.10 motion (see CPL 440.10[2][c] ; People v. Lewis, 138 A.D.3d 1346, 1348 n. 3, 30 N.Y.S.3d 387 [2016] ; People v. Rebelo, 137 A.D.3d 1315, 1316, 27 N.Y.S.3d 699 [2016], lv. denied 28 N.Y.3d 936, 40 N.Y.S.3d 363, ......
  • Request a trial to view additional results

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