People v. Price

• Decision Date: 07 May 2021
• Docket Number: 318,KA 18-01975
• Citation: 194 A.D.3d 1382,149 N.Y.S.3d 393
• Parties: The PEOPLE of the State of New York, Respondent, v. Grant PRICE, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

194 A.D.3d 1382

149 N.Y.S.3d 393

The PEOPLE of the State of New York, Respondent,

v.Grant PRICE, Defendant-Appellant.

318

KA 18-01975

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

Entered: May 7, 2021

J. SCOTT PORTER, SENECA FALLS, FOR DEFENDANT-APPELLANT.

MARK S. SINKIEWICZ, ACTING DISTRICT ATTORNEY, WATERLOO (MELISSA K. SWARTZ OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., PERADOTTO, CURRAN, WINSLOW, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of sexual abuse in the first degree ( Penal Law § 130.65 [1] ), arising from allegations that defendant and his brother engaged in sexual misconduct with the victim.Defendant contends that his waiver of indictment was jurisdictionally defective on the ground that County Court(Bender, J.), while acting in its capacity as the local criminal court, violated CPL 195.10 by failing to properly hold defendant for action of a grand jury.Although we agree with defendant that this particular contention need not be preserved for our review (seePeople v. Boston , 75 N.Y.2d 585, 589 n.*, 555 N.Y.S.2d 27, 554 N.E.2d 64[1990];cf.People v. Thomas , 34 N.Y.3d 545, 568, 122 N.Y.S.3d 226, 144 N.E.3d 970[2019], cert denied––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512[2020] ), is not forfeited by his guilty plea (seePeople v. Anderson , 149 A.D.3d 766, 766-767, 50 N.Y.S.3d 552[2d Dept.2017] ), and would not be precluded by a valid waiver of the right to appeal (seePeople v. Waid , 26 A.D.3d 734, 734-735, 809 N.Y.S.2d 330[4th Dept.2006], lv denied6 N.Y.3d 839, 814 N.Y.S.2d 87, 847 N.E.2d 384[2006] ), we nevertheless conclude that it lacks merit.

CPL 195.10 (1) provides that "[a]defendant may waive indictment and consent to be prosecuted by superior court information when," among other requirements, "a local criminal court has held the defendant for the action of a grand jury"( CPL 190.10 [1][a] )."Being so ‘held’ for the action of a [g]rand [j]ury involves the filing of a felony complaint on which defendant has been arraigned and a finding after a preliminary hearing (unless waived by defendant) that reasonable cause exists to believe that defendant committed a felony"( People v. Barber , 280 A.D.2d 691, 692, 720 N.Y.S.2d 223[3d Dept.2001], lv denied96 N.Y.2d 825, 729 N.Y.S.2d 445, 754 N.E.2d 205[2001];seePeople v. D'Amico , 76 N.Y.2d 877, 879, 561 N.Y.S.2d 411, 562 N.E.2d 488[1990] ).

Here, despite the absence of an order issued by the court, the record establishes that defendant was properly held for the action of a grand jury inasmuch as defendant acknowledged that he received the felony complaint upon which he was arraigned and waived his right to a preliminary hearing (seePeople v. Gassner , 193 A.D.3d 1182, 1183, 147 N.Y.S.3d 191[3d Dept.2021];Anderson , 149 A.D.3d at 767, 50 N.Y.S.3d 552 ), and the court immediately transferred over the case from its capacity as the local criminal court to its capacity as County Court(seePeople v. Fox , 158 A.D.3d 591, 591, 71 N.Y.S.3d 60[1st Dept.2018], lv denied31 N.Y.3d 1081, 79 N.Y.S.3d 103, 103 N.E.3d 1250[2018];People v. Cicio , 157 A.D.3d 651, 651, 67 N.Y.S.3d 468[1st Dept.2018], lv denied31 N.Y.3d 982, 77 N.Y.S.3d 660, 102 N.E.3d 437[2018];People v. Davenport , 106 A.D.3d 1197, 1197, 964 N.Y.S.2d 759[3d Dept.2013], lv denied21 N.Y.3d 1073, 974 N.Y.S.2d 322, 997 N.E.2d 147[2013] ).We also note that defendant signed in open court the waiver of indictment in which he consented to being prosecuted by superior court information (SCI), and the court's order approving the waiver stated that it complied with the provisions of CPL 195.10(seeGassner , 193 A.D.3d at 1183, 147 N.Y.S.3d 191;People v. Simmons , 110 A.D.3d 1371, 1372, 973 N.Y.S.2d 865[3d Dept.2013];Barber , 280 A.D.2d at 693, 720 N.Y.S.2d 223 ).We thus reject defendant's contention that the waiver of indictment was jurisdictionally defective.

Contrary to defendant's contention, his further challenge to the SCI was forfeited by his guilty plea (see generallyThomas , 34 N.Y.3d at 569, 122 N.Y.S.3d 226, 144 N.E.3d 970 ) and, in any event, is not preserved for our review inasmuch as "[a] purported error or insufficiency in the facts of an indictment or information to which a plea is taken does not constitute a nonwaivable jurisdictional defect and must be raised in the trial court"( People v. Milton , 21 N.Y.3d 133, 137, 967 N.Y.S.2d 680, 989 N.E.2d 962 n [2013];see generallyPeople v. Iannone , 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656[1978] ).

Defendant next contends that County Court(Healy, A.J.) abused its discretion in denying his motion to withdraw his guilty plea following a hearing.Although defendant's contention would survive even a valid waiver of the right to appeal (seeThomas , 34 N.Y.3d at 558, 122 N.Y.S.3d 226, 144 N.E.3d 970;People v. Carr , 147 A.D.3d 1506, 1506, 47 N.Y.S.3d 561[4th Dept.2017], lv denied29 N.Y.3d 1030, 62 N.Y.S.3d 298, 84 N.E.3d 970[2017] ), we nonetheless conclude that it lacks merit for the reasons that follow.

Defendant asserts in particular that his plea was coerced because the availability of the plea bargain for his brother was linked to defendant's acceptance of the plea, and because he was pressured into accepting that bargain by his former attorney.It is well established that, "so long as the plea agreement is voluntarily, knowingly and intelligently made, the fact that it is linked to the prosecutor's acceptance of a plea bargain favorable to a third person does not, by itself, make [a]defendant's plea illegal"( People v. Fiumefreddo , 82 N.Y.2d 536, 544, 605 N.Y.S.2d 671, 626 N.E.2d 646[1993] )."[W]hile a connected plea entailing benefit to a third person can place pressure on a defendant, the ‘inclusion of a third-party benefit in a plea bargain is simply one factor for a [trial] court to weigh in making the overall determination whether the plea is voluntarily entered’ "( id. at 545, 605 N.Y.S.2d 671, 626 N.E.2d 646;seePeople v. Schrecengost , 273 A.D.2d 937, 938, 710 N.Y.S.2d 226[4th Dept.2000], lv denied95 N.Y.2d 938, 721 N.Y.S.2d 614, 744 N.E.2d 150[2000] ).

Here, defendant's claim that he acquiesced to the plea only so that the bargain would be available to his brother is undermined by the hearing testimony of his brother.Moreover, the hearing testimony of the former attorneys for defendant and his brother belies defendant's claim that he was coerced and had insufficient time to discuss the linked plea bargain during a meeting prior to the plea proceeding, and we see no basis to disturb the court's determination to credit the testimony of the former attorneys over that of defendant(seePeople v. Henderson , 169 A.D.3d 1521, 1522, 93 N.Y.S.3d 785[4th Dept.2019], lv denied33 N.Y.3d 977, 101 N.Y.S.3d 252, 124 N.E.3d 741[2019];People v. Stephens , 6 A.D.3d 1123, 1124, 775 N.Y.S.2d 684[4th Dept.2004], lv denied3 N.Y.3d 663, 782 N.Y.S.2d 705, 816 N.E.2d 578[2004], reconsideration denied3 N.Y.3d 682, 784 N.Y.S.2d 20, 817 N.E.2d 838[2004];see generallyPeople v. Santos , 244 A.D.2d 897, 897, 665 N.Y.S.2d 208[4th Dept.1997] ).With respect to the advice provided during the meeting, "the fact ‘[t]hat [former defense]counsel made defendant aware of his sentencing exposure cannot be a basis for finding coercion’ "( People v. Humber , 35 A.D.3d 1209, 1209, 825 N.Y.S.2d 892[4th Dept.2006], lv denied8 N.Y.3d 923, 834 N.Y.S.2d 513, 866 N.E.2d 459[2007];seePeople v. Days , 150 A.D.3d 1622, 1624, 55 N.Y.S.3d 544[4th Dept.2017], lv denied29 N.Y.3d 1125, 64 N.Y.S.3d 675, 86 N.E.3d 567[2017] ).Likewise, "[former] defense counsel's advice that [defendant] was unlikely to prevail at trial and that he would likely receive a harsher sentence if convicted after trial ... does not constitute coercion"( People v. Griffin , 120 A.D.3d 1569, 1570, 993 N.Y.S.2d 404[4th Dept.2014], lv denied24 N.Y.3d 1084, 1 N.Y.S.3d 11, 25 N.E.3d 348[2014];seePeople v. Schluter , 136 A.D.3d 1363, 1364, 24 N.Y.S.3d 478[4th Dept.2016], lv denied27 N.Y.3d 1138, 39 N.Y.S.3d 121, 61 N.E.3d 520[2016] ).Additionally, as defendant correctly concedes, the court and former defense counsel were not required to mention Sex Offender Registration Act registration as a possible collateral consequence of the plea (seePeople v. Gravino , 14 N.Y.3d 546, 550, 902 N.Y.S.2d 851, 928 N.E.2d 1048[2010];People v. Clark , 261 A.D.2d 97, 100, 704 N.Y.S.2d 149[3d Dept.2000], lv denied95 N.Y.2d 833, 713 N.Y.S.2d 140, 735 N.E.2d 420[2000] ).Although "[i]t does not necessarily follow ... that [such] nondisclosure is always irrelevant to the question of whether a court should exercise its discretion to grant a motion to withdraw a plea,"defendant here failed to "show that he pleaded guilty in ignorance of a consequence that, although collateral for purposes of due process, was of such great importance to him that he would have made a different decision had that consequence been disclosed"( Gravino , 14 N.Y.3d at 559, 902 N.Y.S.2d 851, 928 N.E.2d 1048;see generallyPeople v. Harnett , 16 N.Y.3d 200, 207, 920 N.Y.S.2d 246, 945 N.E.2d 439[2011] ).Upon weighing the totality of the circumstances, we conclude that the record establishes that d...