People v. Simpson

• Decision Date: 29 July 2021
• Docket Number: 110137, 112267
• Citation: 150 N.Y.S.3d 833,196 A.D.3d 996
• Parties: The PEOPLE of the State of New York, Respondent, v. James M. SIMPSON, Appellant.
• Court: New York Supreme Court — Appellate Division

196 A.D.3d 996
150 N.Y.S.3d 833

The PEOPLE of the State of New York, Respondent,
v.
James M. SIMPSON, Appellant.

110137, 112267

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

Calendar Date: May 26, 2021
Decided and Entered: July 29, 2021

150 N.Y.S.3d 835

Erin C. Morigerato, Albany, for appellant, and appellant pro se.

Michael A. Korchak, District Attorney, Binghamton (Rita M. Basile of counsel), for respondent.

Before: Egan Jr., J.P., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.P.

196 A.D.3d 996

Appeals (1) from a judgment of the County Court of Broome County (Dooley, J.), rendered January 18, 2018, convicting defendant upon his plea of guilty of the crimes of attempted assault in the first degree, criminal possession of a weapon in the second degree and assault in the second degree, and (2) by permission, from an order of said court, entered March 10, 2020, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

In March 2017, defendant was charged by indictment with attempted assault in the first degree, criminal possession of a weapon in the second degree, assault in the second degree and menacing in the second degree, arising from an incident in January 2017 in which defendant shot another person outside of a bar in the City of Binghamton, Broome County. After pretrial motion practice, which resulted in County Court dismissing the menacing in the second degree charge, defendant

196 A.D.3d 997

entered into a plea agreement whereby he pleaded guilty to the three remaining charges in return for a sentence not to exceed eight years in prison, with three years of postrelease supervision. Prior to sentencing, defendant moved to withdraw his plea, claiming that, due to his intoxication at the time of the incident, he had no independent recollection of the shooting and that his counsel had received a letter from the victim stating that defendant was not the person who shot him. In a January 2018 decision and order, County Court denied the motion without a hearing. Consistent with the terms of the plea agreement, County Court thereafter sentenced defendant to concurrent prison terms of eight years, to be followed by three years of postrelease supervision, for his convictions of attempted assault in the first degree and criminal possession of a weapon in the second degree and to a lesser concurrent prison term on his remaining conviction of assault in the second degree. Defendant's subsequent motion pursuant to CPL 440.10 to vacate the judgment of conviction was denied by County Court without a hearing. Defendant appeals from the judgment of conviction and, by permission, from the order denying his CPL article 440 motion.

County Court did not abuse its discretion in denying defendant's motion to withdraw his guilty plea without a hearing. "Whether to permit a defendant to withdraw his or her plea of guilty is left to the

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sound discretion of County Court, and withdrawal will generally not be permitted absent some evidence of innocence, fraud or mistake in its inducement" ( People v. Snow, 159 A.D.3d 1278, 1279, 72 N.Y.S.3d 652 [2018] [internal quotation marks and citations omitted]; see CPL 220.60[3] ). Here, defendant moved to withdraw his plea, pointing to a letter purportedly written by the victim wherein the victim claimed that defendant was not the person who shot him. Recantation evidence is inherently unreliable and insufficient alone to justify withdrawal of a plea (see People v. Beaver, 150 A.D.3d 1325, 1325–1326, 54 N.Y.S.3d 712 [2017] ). This alleged statement, written by the victim during a brief period that he and defendant were both incarcerated at the Broome County jail, was contrary to the account of the incident that he gave in a supporting deposition the day of the shooting, defendant's plea colloquy and a later statement given by the victim to an investigator retained by defendant (see People v. Caccavale, 152 A.D.3d 537, 537–538, 58 N.Y.S.3d 135 [2017] ; People v. Caruso, 88 A.D.3d 809, 810, 930 N.Y.S.2d 668 [2011], lv denied 18 N.Y.3d 923, 942 N.Y.S.2d 462, 965 N.E.2d 964 [2012] ; People v. Douglas, 83 A.D.3d 1092, 1093, 921 N.Y.S.2d 324 [2011] ).

Turning to defendant's CPL article 440 motion, defendant contends that his plea to count 1 of the indictment, charging

196 A.D.3d 998

him with attempted assault in the first degree, cannot stand because that count failed to allege a crime and, therefore, the indictment with respect thereto was jurisdictionally defective. As defendant's claim can be determined on the record and was reviewable on direct appeal, County Court properly denied the motion without a hearing with respect to this claim, as such claim cannot be advanced in the context of a CPL article 440 motion (see CPL 440.10[2][b] ; People v. Herbert, 147 A.D.3d 1208, 1210–1211, 47 N.Y.S.3d 500 [2017] ; People v. Jones, 101 A.D.3d 1482, 1483, 956 N.Y.S.2d 703 [2012], lv denied 21 N.Y.3d 1017, 971 N.Y.S.2d 499, 994 N.E.2d 395 [2013] ; People v. Chiacchiarini, 91 A.D.3d 1118, 1119, 936 N.Y.S.2d 394 [2012], lv denied 19 N.Y.3d 863, 947 N.Y.S.2d 411, 970 N.E.2d 434 [2012] ; People v. Lagas, 49 A.D.3d 1025, 1026, 853 N.Y.S.2d 434 [2008], lvs denied 10 N.Y.3d 859, 866, 860 N.Y.S.2d 485, 492, 890 N.E.2d 248, 255[2008]). To the extent that defendant also contends as part of his CPL 440.10 motion that he was denied the effective assistance of counsel based upon counsel's failure to conduct a reasonable investigation of the incident prior to advising him whether to plead guilty, we find said argument to be without merit. Defendant's trial counsel filed appropriate pretrial motions, obtained dismissal of one count of the indictment as a result thereof and sought suppression of defendant's statements and the physical evidence seized following him being taken into custody and, after reviewing security video of the incident, bodycam video from responding officers and defendant's interview with police. In addition, counsel ultimately obtained a favorable plea bargain on defendant's behalf that capped defendant's sentencing exposure well below the maximum allowable by law. Moreover, upon subsequently learning of the victim's recantation letter, defendant's counsel obtained an adjournment of defendant's sentencing, obtained the services of a private investigator and thereafter timely moved to withdraw defendant's plea. Accordingly, viewed in the totality, we are satisfied that defendant received meaningful representation such that County Court did not abuse its discretion in denying his motion without a hearing (see People v. Johnson, 194 A.D.3d 1267, 1269, 147 N.Y.S.3d 258 [2021] ).

Defendant's contention that his guilty plea was not knowing, voluntary and

150 N.Y.S.3d 837

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