People v. Simpson

• Decision Date: 19 January 2017
• Parties: The PEOPLE of the State of New York, Appellant, v. Johnnie SIMPSON, also known as Gazoo, Respondent.
• Court: New York Supreme Court — Appellate Division

146 A.D.3d 1175
47 N.Y.S.3d 477

The PEOPLE of the State of New York, Appellant,
v.
Johnnie SIMPSON, also known as Gazoo, Respondent.

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

Jan. 19, 2017.

47 N.Y.S.3d 477

Law Office of Raymond D. Sprowls, Walden (Raymond D. Sprowls of counsel), for appellant.

D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Before: McCARTHY, J.P., EGAN JR., LYNCH, CLARK and AARONS, JJ.

CLARK, J.

146 A.D.3d 1175

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered April 14, 2015, convicting defendant upon his guilty plea of the crime of criminal possession of a controlled substance in the third degree.

In March 2014, defendant sold cocaine to a confidential informant (hereinafter CI) in two separate controlled buys. Under the supervision of police, the CI arranged a third controlled buy, which culminated in

47 N.Y.S.3d 478

defendant being arrested and found to be in possession of cocaine prior to completion of the sale. Defendant was thereafter charged with criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree. Defendant pleaded guilty to criminal possession of a controlled substance in the third degree in full satisfaction of the indictment and waived his right to appeal. Defendant was

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sentenced to the agreed-upon prison term of six years, with two years of postrelease supervision, and he now appeals.

We affirm. Our review of the record confirms that dependant's waiver of appeal was knowing, voluntary and intelligent (see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006] ; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Dickson–Eason, 143 A.D.3d 1013, 1013, 38 N.Y.S.3d 637 [2016], lv. denied 28 N.Y.3d 1123, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2016] ). County Court thoroughly explained the meaning and consequences of the appeal waiver and its separate and distinct nature, and defendant orally confirmed that he understood the implications of waiving his right to appeal and signed a written waiver of appeal in open court after conferring with counsel. The valid appeal waiver forecloses defendant's claim of ineffective assistance of counsel, except to the extent that such claim impacts the voluntariness of his plea; however, this claim is unpreserved as the record does not reflect that defendant moved to withdraw his plea on this ground (see CPL 220.60[3] ; People v. Lobaton, 140 A.D.3d 1534, 1535, 33 N.Y.S.3d 780 [2016], lv. denied 28 N.Y.3d 972, 43 N.Y.S.3d 259, 66 N.E.3d 5 [2016] ). Defendant's statutory speedy trial arguments were also waived by his guilty plea (see People v. Friscia, 51 N.Y.2d 845, 847, 433 N.Y.S.2d 754, 413 N.E.2d 1168 [1980] ; People v. Slingerland, 101 A.D.3d 1265, 1267, 955 N.Y.S.2d 690 [2012], lv. denied 20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538 [2013] ). Defendant's related claim that trial counsel was ineffective for failing to move to dismiss the indictment on statutory speedy trial grounds was not preserved in the absence of an appropriate postallocution motion raising this argument; consequently, given that the record is inadequate to review the merits of this claim, it can only be raised in a CPL article 440 motion (see People v. Viele, 130 A.D.3d 1097, 1097, 10 N.Y.S.3d 912 [2015] ).

Next, defendant contends that his trial counsel had an actual conflict of interest that was not adequately explained to or waived by him, therefore depriving him of the effective assistance of conflict-free counsel. After the first day of the combined pretrial suppression hearings, defense counsel advised County Court on the record, in defendant's presence, that the CI had been arrested the night before the start of the hearing¹ and had retained defense counsel's partner to represent him on those charges. Upon learning this information, defense counsel reported that he had advised his partner that

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the CI was involved in the events that led to defendant's charges and directed the partner not to speak with the CI about the charges against either the CI or defendant. The

47 N.Y.S.3d 479

partner represented the CI solely at the arraignment and bail hearing the next morning and immediately withdrew from the representation. Upon further inquiry by the court that day and again roughly two months later, defense counsel assured the court that he had never spoken to the CI and had acquired no privileged information about him. Defense counsel further assured the court that his partner had no conversations with the police or the CI about the background of the charges against the CI and had not acquired any such information. The court and defense counsel then advised defendant that, if counsel continued to represent him, counsel would not be able to use any privileged information, if he had acquired any, to cross-examine the CI at defendant's trial if...