People v. Wares

• Decision Date: 22 January 2015
• Citation: 2015 N.Y. Slip Op. 00572,124 A.D.3d 1079,2 N.Y.S.3d 270
• Parties: The PEOPLE of the State of New York, Respondent, v. Clifford William WARES, Appellant.
• Court: New York Supreme Court — Appellate Division

124 A.D.3d 1079

2 N.Y.S.3d 270

2015 N.Y. Slip Op. 00572

The PEOPLE of the State of New York, Respondent

v.Clifford William WARES, Appellant.

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

Jan. 22, 2015.

Theodore J. Stein, Woodstock, for appellant, and appellant pro se.

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

Before: LAHTINEN, J.P., McCARTHY, EGAN JR. and DEVINE, JJ.

Opinion

LAHTINEN, J.P.

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered January 16, 2013, convicting defendant upon his plea of guilty of the crimes of disseminating indecent material to minors in the first degree (two counts) and disseminating indecent material to minors in the second degree.

Between November 2010 and March 2011, defendant, then 38 years old, allegedly sent to the 13–year–old victim a series of electronic communications in which he, among other things, graphically discussed and solicited various forms of sexual activity with the victim. He also attached numerous photographs of, among other things, his erect penis, individuals engaged in various explicit sexual activities, and an individual having sex with an animal. He was charged in a 37–count indictment with 31 counts of disseminating indecent material to a minor in the first degree, five counts of disseminating indecent material to a minor in the second degree and one count of endangering the welfare of a child. Defendant was offered a plea to three counts—two counts of disseminating indecent material to a minor in the first degree and one count of disseminating indecent material to a minor in the second degree—in satisfaction of all charges. County Court stated that, if he accepted the plea, the maximum allowable sentences on the three counts would be imposed consecutively. Defendant accepted the plea, but later moved before sentencing to withdraw his guilty plea. After a hearing, County Court denied defendant's motion. He was sentenced consistent with the plea to consecutive prison terms totaling 9 to 18 years. Defendant appeals.

Defendant contends that the indictment failed to adequately identify the specific acts constituting the charged crimes. “An indictment count which incorporates by reference the statutory provision applicable to the charged crime sufficiently alleges all of the elements of that crime, rendering the count valid” (People v. Mitchell, 94 A.D.3d 1252, 1252, 942 N.Y.S.2d 657 [2012], lv. denied 19 N.Y.3d 964, 950 N.Y.S.2d 116, 973 N.E.2d 214 [2012] [internal quotation marks and citations omitted]; see People v. D'Angelo, 98 N.Y.2d 733, 735, 750 N.Y.S.2d 811, 780 N.E.2d 496 [2002] ). Here, each count of the indictment cited the pertinent Penal Law section and quoted from the statute. With regard to the factual allegations of the indictment, by pleading guilty, defendant waived any challenge to the specificity of those allegations (see People v. Cole, 118 A.D.3d 1098, 1099–1100, 987 N.Y.S.2d 247 [2014] ; People v. Downs, 26 A.D.3d 525, 526, 807 N.Y.S.2d 743 [2006], lv. denied 6 N.Y.3d 847, 816 N.Y.S.2d 753, 849 N.E.2d 976 [2006] ).

We find no merit in defendant's argument that he did not receive the effective assistance of counsel. “It is well settled that in the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel” (People v. Leszczynski, 96 A.D.3d 1162, 1162, 948 N.Y.S.2d 125 [2012], lv. denied 19 N.Y.3d 998, 951 N.Y.S.2d 474, 975 N.E.2d 920 [2012] [internal quotation marks, brackets and citations omitted]; accord People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995] ; People v. Seuffert, 104 A.D.3d 1021, 1022, 960 N.Y.S.2d 738 [2013], lv. denied 21 N.Y.3d 1009, 971 N.Y.S.2d 261, 993 N.E.2d 1284 [2013] ). Defendant received an advantageous plea in that he faced 37 counts and had exposure to a much longer sentence than he ultimately received as part of the plea. Contrary to his current contention that his attorney pressured him into the plea, defendant stated during the plea that his attorney had not forced him to take the plea and he acknowledged that he was satisfied with his attorney's representation of him. Nothing in the record reflects that the representation that defendant received—from the commencement of his criminal case to the completion of his favorable plea—was ineffective. His assertion that he received ineffective assistance from the separate attorney who represented him in his motion to withdraw his plea is unpersuasive, in that, the purported errors amount to merely second-guessing legitimate legal strategy (see People v. Benevento, 91 N.Y.2d 708, 712–713, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ).

Defendant next asserts that County Court erred in not allowing him to withdraw his plea. “Whether a defendant should be permitted to withdraw his or her plea rests within the sound discretion of the trial court and, generally, such a motion should not be granted absent a showing of innocence, fraud or mistake in the inducement” (People v. Galvan, 107 A.D.3d 1058, 1058, 966 N.Y.S.2d 286 [2013], lv. denied 21 N.Y.3d 1042, 972 N.Y.S.2d 539, 995 N.E.2d 855 [2013] [citations omitted]; accord People v. Barton, 113 A.D.3d 927, 928, 978 N.Y.S.2d 446 [2014] ). Defendant's claim at the hearing that he had been under the influence of illegally obtained prescription drugs at the time of the plea was in direct conflict to his acknowledgment...