State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 10, 2015 105960
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
BRANDON GRIFFIN,
Appellant.
________________________________
Calendar Date: October 23, 2015
Before: McCarthy, J.P., Egan Jr., Lynch and Devine, JJ.
__________
Theodore J. Stein, Woodstock, for appellant, and appellant
pro se.
D. Holley Carnright, District Attorney, Kingston (Joan
Gudesblatt Lamb of counsel), for respondent.
__________
Egan Jr., J.
Appeal from a judgment of the County Court of Ulster County
(Williams, J.), rendered April 17, 2013, convicting defendant
upon his plea of guilty of the crime of criminal possession of a
controlled substance in the third degree.
Defendant was indicted and charged with one count of
criminal possession of a controlled substance in the third
degree. The charge stemmed from a controlled buy that occurred
in the City of Kingston, Ulster County on September 11, 2012,
during the course of which defendant allegedly was found to be in
possession of 110 glassine envelopes of a substance that field
tested positive for heroin. When the parties appeared before
County Court in February 2013 for a suppression hearing and jury
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selection, defense counsel indicated that, despite having
rejected prior offers, defendant was interested in accepting a
plea. Following an extensive colloquy with County Court,
defendant pleaded guilty to the sole count of the indictment1 and
waived his right to appeal in exchange for a sentence of nine
years in prison followed by three years of postrelease
supervision. Defendant's subsequent pro se motion to withdraw
his plea was denied, and County Court thereafter sentenced
defendant in accordance with the terms of the plea agreement.
Defendant now appeals, contending that the waiver of his right to
appeal was not knowing, intelligent and voluntary and that he was
denied the effective assistance of counsel.
We affirm. "When an appeal waiver is challenged, the
operative question is whether the trial court has confirmed on
the record that the defendant understands the terms and
conditions of his or her plea agreement" (People v Pope, 129 AD3d
1389, 1389 [2015] [citations omitted]). To that end, the court
is "not obliged to engage in any particular litany or catechism
in satisfying itself that a defendant has entered a knowing,
intelligent and voluntary appeal waiver" (People v Smith, 121
AD3d 1131, 1131 [2014], lv denied 24 NY3d 1123 [2015] [internal
quotation marks and citations omitted]). As long as the record
reflects "that there was some judicial examination of the waiver
itself" (People v McCaskill, 76 AD3d 751, 752 [2010] [internal
quotation marks and citation omitted]) and that the defendant had
"a full appreciation of the consequences of such waiver" (People
v Spellicy, 123 AD3d 1228, 1229 [2014], lv denied 25 NY3d 992
[2015] [internal quotation marks and citations omitted]), the
challenged waiver may be upheld.
1
Although the cover sheet of the indictment contains
references to crimes with which defendant was not charged and
County Court mistakenly inquired as to whether defendant was
pleading guilty to criminal possession of a controlled substance
in the first degree, it is otherwise clear from the record that
defendant was charged with and pleaded guilty to one count of
criminal possession of a controlled substance in the third
degree.
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Here, although County Court should have more clearly
distinguished defendant's right to appeal from the remainder of
the rights that defendant forfeited upon pleading guilty, the
record nonetheless reflects that County Court reviewed the waiver
with defendant and obtained the required assurances that
defendant fully appreciated the appellate rights that he was
waiving (see People v Waite, 120 AD3d 1446, 1447 [2014]; People v
Sylvan, 107 AD3d 1044, 1045 [2013], lv denied 22 NY3d 1141
[2014]). Notably, during the course of the colloquy between
County Court and defendant, defendant – evidencing his knowledge
of the criminal justice system – inquired as to whether the
waiver encompassed only those issues that could be raised upon a
"direct appeal" or extended to CPL article 440 motions and habeas
corpus proceedings as well. Following additional discussions
with County Court, defendant indicated that he had no further
questions and, when County Court urged defendant to pose any
inquiries that he may have to counsel prior to proceeding,
defendant replied, "I'm fine." Defendant was presented with a
copy of the detailed written waiver of appeal, which was amended
to address defendant's concern regarding his right to pursue
certain postplea applications, and was questioned as to his
understanding thereof. Again, defendant indicated that he
understood everything that had been discussed. Defendant then
executed the written waiver – the text of which expressly
delineated the separate and distinct nature of defendant's
appellate rights and confirmed that defendant had been afforded
"ample opportunity to discuss such rights and [the] waiver with
[his] attorney and to address and ask questions of [County] Court
regarding them." Under these circumstances, we are satisfied
that the record reflects that defendant's waiver of his right to
appeal his conviction and sentence was knowing, intelligent and
voluntary (see People v Tole, 119 AD3d 982, 982-983 [2014];
People v Henion, 110 AD3d 1349, 1350 [2013], lv denied 22 NY3d
1088 [2014]; People v White, 96 AD3d 1299, 1299-1300 [2012], lv
denied 19 NY3d 1029 [2012]; compare People v Pope, 129 AD3d at
1389-1390; People v Ritter, 124 AD3d 1133, 1134 [2015]; People v
Bouton, 107 AD3d 1035, 1036 [2013], lv denied 21 NY3d 1072
[2013]).
As to defendant's claim of ineffective assistance of
counsel, certain of the arguments raised by defendant in this
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regard – including his assertion that defense counsel failed to
conduct an adequate pretrial investigation (see People v Bahr, 96
AD3d 1165, 1166 [2012], lv denied 19 NY3d 1024 [2012]), seek out
and interview alibi witnesses (see People v Varmette, 70 AD3d
1167, 1172 [2010], lv denied 14 NY3d 845 [2010]), pursue certain
discovery demands and/or available defenses (see People v Davis,
114 AD3d 1003, 1003 [2014], lv denied 23 NY3d 962 [2014]), seek
sanctions for alleged prosecutorial misconduct (cf. People v
Jones, 101 AD3d 1482, 1483 [2012], lv denied 21 NY3d 1017 [2013])
and explain the collateral consequences of his plea (cf. People v
Balbuena, 123 AD3d 1384, 1386 [2014]) – involve matters outside
of the record and, as such, are more properly the subject of a
CPL article 440 motion. To the extent that the balance of
defendant's ineffective assistance of counsel claim impacts upon
the voluntariness of his plea, such claim survives the valid
appeal waiver but must be preserved by an appropriate
postallocution motion (see e.g. People v Moses, 110 AD3d 1118,
1118 [2013]). In this regard, the record reflects that defendant
made a pro se motion to withdraw his plea claiming, insofar as is
relevant here, that counsel's performance was deficient in that
she conspired with the People to procure an "excessive sentence,"
failed to adopt four of defendant's five pro se motions and
neglected to advocate for and secure a favorable plea deal.
Accordingly, the additional grounds now advanced by defendant in
his pro se brief – including his assertions that counsel failed
to bring certain pretrial motions, neglected to correct
inaccurate information relative to defendant's criminal history
and failed to object to County Court's alleged bias – are
unpreserved for our review, as defendant did not advance these
specific grounds in his motion to withdraw his plea (see People v
Delarosa, 104 AD3d 956, 956 [2013], lv denied 21 NY3d 1003
[2013]; People v Escalante, 16 AD3d 984, 984-985 [2005], lvs
denied 5 NY3d 788, 793 [2005]).
In any event, "[d]efense counsel was not required to
support defendant's various pro se motions" (People v Blackwell,
129 AD3d 1690, 1691 [2015], lv denied 26 NY3d 926 [2015]; see
People v Jones, 261 AD2d 920, 920 [1999], lv denied 93 NY2d 972
[1999]; see also People v Adams, 66 AD3d 1355, 1356 [2009], lv
denied 13 NY3d 858 [2009]), and "the failure to make a particular
pretrial motion does not – per se – constitute ineffective
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assistance of counsel" (People v Alnutt, 107 AD3d 1139, 1145
[2013], lv denied 22 NY3d 1136 [2014]; see People v Carbone, 101
AD3d 1232, 1235 [2012]). Additionally, counsel did endeavor to
clarify and correct certain information contained in the
presentence investigation report (see People v Orengo, 286 AD2d
344, 344-345 [2001], affd 97 NY2d 739 [2002]) and, contrary to
defendant's assertion, the record falls far short of establishing
any colorable claim of judicial bias, thereby obviating any need
for counsel to take corrective action in this regard. The record
is similarly bereft of any evidence of a "conspiracy" to subject
defendant to an "excessive" sentence. In short, inasmuch as
defendant "receive[d] an advantageous plea and nothing in the
record casts doubt on the apparent effectiveness of counsel"
(People v Vonneida, 130 AD3d 1322, 1322 [2015] [internal
quotation marks and citations omitted]; accord People v Jenkins,
130 AD3d 1091, 1091 [2015]), we are satisfied that defendant was
afforded meaningful representation.
Finally, defendant's challenge to the perceived severity of
his sentence is precluded by his valid waiver of the right to
appeal (see People v Donah, 127 AD3d 1413, 1413 [2015]), and his
assertion that County Court should have assigned substitute
counsel to represent him is unpreserved for our review.
Defendant's remaining arguments, to the extent not specifically
addressed, have been examined and found to be lacking in merit.
McCarthy, J.P., Lynch and Devine, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court