People v. Trombley

• Decision Date: 26 January 2012
• Parties: The PEOPLE of the State of New York, Respondent, v. Rick TROMBLEY, Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00428

91 A.D.3d 1197

937 N.Y.S.2d 665

The PEOPLE of the State of New York, Respondent,

v.Rick TROMBLEY, Appellant.

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

Jan. 26, 2012.

G. Scott Walling, Queensbury, for appellant.

Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), for respondent.

Before: SPAIN, J.P., LAHTINEN, MALONE JR., STEIN and EGAN JR., JJ.

SPAIN, J.P.

Appeals (1) from a judgment of the County Court of Franklin County (Main Jr., J.), rendered May 17, 2010, convicting defendant upon his plea of guilty of the crime of criminal contempt in the second degree, and (2) by permission, from an order of said court, entered January 3, 2011, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

After a late night argument with Korrin Schofield in May 2009 outside a bar in the Town of Tupper Lake, Franklin County, defendant was arrested and charged with criminal contempt in the first degree. That felony charge was based upon the allegation that defendant had violated an order of protection, dated August 21, 2008 (hereinafter the 2008 order of protection) issued by Supreme Court, Essex County (Meyer, J.) in a Family Ct. Act article 10 neglect proceeding involving defendant's sons in which defendant was a respondent; the 2008 order of protection, among other provisions, directed defendant to refrain from criminal offenses against his sons and Schofield, his then girlfriend and the mother of one of his sons, and directed defendant and Schofield not to “use, consume or possess illegal drugs or alcoholic beverages.”

When the matter was presented to the Franklin County grand jury, two felony counts of criminal contempt in the first degree were charged based upon defendant's alleged assault of Schofield, and one count of criminal contempt in the second degree, a misdemeanor, was charged based upon defendant's use and consumption of alcohol that night. Defendant waived immunity and testified on his own behalf, admitting that he had consumed alcohol that evening. Other witnesses also testified that defendant was intoxicated that evening and was seen consuming alcohol. While the grand jury dismissed the first degree felony contempt charges related to Schofield ( see CPL 190.75[1] ), it handed up a one-count indictment charging defendant with criminal contempt in the second degree ( see Penal Law § 215.50[3] ) for violating the 2008 order of protection ¹ by possessing and consuming alcohol.

Defendant, represented by the conflict Public Defender, was released under supervision of probation, which the People later sought to have revoked based upon other charges pending against defendant, including his arrest in the Village of Tupper Lake, Franklin County for aggravated unlicensed operation of a motor vehicle in the second degree (hereinafter AUO) ( see Vehicle and Traffic Law § 511[2] ). On February 22, 2010, defendant appeared with assigned counsel and, pursuant to a negotiated agreement, entered a guilty plea to the indicted contempt charge, which also satisfied the pending AUO charge. While County Court made no sentencing promises, defendant was advised of the available options. Defendant also waived his right to appeal, except with regard to constitutional issues and the sentence.

On the date scheduled for sentencing, assigned counsel informed County Court that defendant wished to retain a particular attorney, defendant briefly consulted with that attorney, who was in court, and sentencing was adjourned for that purpose. Defendant's release under supervision of probation was revoked due to his violation of the conditions attached to his release, and he was remanded to jail pending sentencing. At the rescheduled sentencing, defendant appeared again with his assigned counsel and indicated that, despite his efforts, he had not had any contact with the attorney who he had expressed an interest in retaining. The court made note of its receipt of a pro se letter from defendant, sent ex parte to the court, requesting to withdraw his plea, which the court had sent to all parties. Counsel did not join defendant's motion, but placed on the record that she had advised defendant of his right to retain substitute counsel, to represent himself and to pursue his pro se motion to withdraw his plea. When pressed by the court about his intentions, defendant indicated that he wanted to proceed to sentencing and did not request a further adjournment. The court sentenced him to 365 days in jail and issued an order of protection in favor of Schofield. Subsequently, County Court, in a lengthy decision, denied defendant's CPL 440.10 motion to vacate the judgment, without a hearing. Defendant now appeals from the judgment of conviction and, with permission, from the order denying his CPL article 440.

Initially, defendant seeks—for the first time on this appeal—to challenge the reasonableness of the conditions imposed in the 2008 order of protection, which directed that he refrain from possessing or consuming alcoholic beverages ( see Family Ct. Act § 1056[1][e] ). The record does not reflect that defendant ever sought to vacate or modify the 2008 order of protection imposing those conditions ( see CPL 530.12[15] ), issued by another court in a different county ( see People v. Nieves, 2 N.Y.3d 310, 317, 778 N.Y.S.2d 751, 811 N.E.2d 13 [2004] ), or that defendant ever appealed from that order ( see Matter of Naricia Y., 61 A.D.3d 1048, 1049, 876 N.Y.S.2d 546 [2009]; see also People v. Nieves, 2 N.Y.3d at 315, 778 N.Y.S.2d 751, 811 N.E.2d 13). Indeed, the Family Ct. Act article 10 record upon which Supreme Court issued the 2008 order of protection is not provided on this appeal, which is only from the judgment entered in County Court upon defendant's guilty plea to criminal contempt in the second degree for violating that order.

Moreover, defendant forfeited any challenge to the validity of the 2008 order of protection by pleading guilty and waiving his right to appeal ( see People v. Konieczny, 2 N.Y.3d 569, 572–573, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004] ); he also failed to preserve this claim by abandoning his motion to withdraw his plea ( see People v. Charlotten, 44 A.D.3d 1097, 1099, 843 N.Y.S.2d 697 [2007] ). Defendant's claim that the 2008 order of protection contained unreasonable conditions in violation of Family Ct. Act § 1056, or ones which did not promote the best interests of the children in that neglect proceeding, does not implicate the jurisdiction of the courts and, thus, did not survive his guilty plea, which “generally results in a forfeiture of the right to appellate review of any nonjurisdictional defects in the proceedings” ( People v. Fernandez, 67 N.Y.2d 686, 688, 499 N.Y.S.2d 919, 490 N.E.2d 838 [1986]; see People v. Konieczny, 2 N.Y.3d at 572–574, 780 N.Y.S.2d 546, 813 N.E.2d 626). While “rights of a constitutional dimension that go to the very heart of the process” survive a guilty plea ( People v. Hansen, 95 N.Y.2d 227, 230, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ), defendant's challenges are not of constitutional dimension, despite his efforts to cast them in that light; rather, they are, at most, nonjurisdictional statutory violations ( see People v. Konieczny, 2 N.Y.3d at 574, 780 N.Y.S.2d 546, 813 N.E.2d 626).

The 2008 order of protection appears, on its face, to be a “valid judicial mandate” and, as such, “was entitled to the presumption of regularity for purposes of fulfilling the pleading requirements” ( People v. Konieczny, 2 N.Y.3d at 577, 780 N.Y.S.2d 546, 813 N.E.2d 626). While “the People would have had the burden of establishing that the [conditions in the] order of protection [were] valid” had defendant gone to trial, “because defendant pleaded guilty without creating a record on the issue ... this Court would have to conduct a collateral review of the prior proceeding based on documents and transcripts outside the record in this case” ( People v. Konieczny, 2 N.Y.3d at 573, 780 N.Y.S.2d 546, 813 N.E.2d 626). In view of the foregoing, we hold that defendant may not, on this appeal, collaterally challenge the validity of the underlying 2008 order of protection or the conditions contained therein.

Next, the record on defendant's direct appeal does not support his claim that he was denied the effective assistance of counsel, or that his guilty plea and appeal waiver were the result of such ineffectiveness. The record establishes that counsel negotiated a favorable plea deal that resolved this charge as well as the unrelated AUO charge for which defendant could have received consecutive sentencing. ² DEFENDANT'S CHALLEnges to counsel's motion practice and discovery efforts were forfeited by his guilty plea, as a defendant who enters a plea and admits guilt “may not later seek review of claims relating to the deprivation of rights that took place before the plea was entered” ( People v. Hansen, 95 N.Y.2d at 230, 715 N.Y.S.2d 369, 738 N.E.2d 773). In any event, this claim lacks merit as counsel entered into a stipulation in lieu of motions providing for open file discovery, and defendant entered a guilty plea prior to the scheduled pretrial suppression hearings. Moreover, while defendant's valid waiver of appeal precludes his claims of ineffective assistance of counsel except to the extent they directly affected the voluntariness of his subsequent plea, his claims regarding counsel's pre-plea performance do not so implicate the voluntariness of his plea so as to survive his appeal waiver ( see People v. Santos–Rivera, 86 A.D.3d 790, 791, 927 N.Y.S.2d 236 [2011], lv. denied 17 N.Y.3d 904, 933 N.Y.S.2d 659, 957 N.E.2d 1163 [2011] ). In addition, “nothing in the record at the time of the plea calls into question the voluntariness of his plea or indicates that it was rendered so due to counsel's [inadequate] representation” ( People v. Herringshaw, 83 A.D.3d 1133,...