State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 19, 2017 108379
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Appellant,
v MEMORANDUM AND ORDER
JOHNNIE SIMPSON, Also Known as
GAZOO,
Respondent.
________________________________
Calendar Date: December 13, 2016
Before: McCarthy, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.
__________
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.
__________
Clark, J.
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 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
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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
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 NY3d 737, 738 [2006]; People v
Lopez, 6 NY3d 248, 256 [2006]; People v Dickson-Eason, 143 AD3d
1013, 1013 [2016], lv denied ___ NY3d ___ [Dec. 20, 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
AD3d 1534, 1535 [2016], lv denied 28 NY3d 972 [2016]).
Defendant's statutory speedy trial arguments were also waived by
his guilty plea (see People v Friscia, 51 NY2d 845, 847 [1980];
People v Slingerland, 101 AD3d 1265, 1267 [2012], lv denied 20
NY3d 1104 [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 AD3d 1097, 1097 [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
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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 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 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 he
testified, and that the CI could claim this privilege. The court
informed defendant that he was entitled to an attorney of his
choosing and could retain a new attorney and, when defendant
indicated that he was confused, the court granted an adjournment
to provide him with an opportunity to choose his course after
conferring with defense counsel or outside counsel. A week
later, defendant indicated that he wanted defense counsel to
continue to represent him2 and thereafter accepted the plea offer
1
The People later clarified that the CI's May 19, 2014
arrest stemmed from charges that the CI had sold drugs in January
2014, which led to his informal agreement with police to
thereafter cooperate. After the CI lost touch with police
following defendant's arrest and did not cooperate or testify
before the grand jury that handed up the indictment against
defendant, the People determined to prosecute defendant without
the CI and to arrest the CI for that earlier criminal conduct.
2
While defendant indicated that he was unable to find an
attorney to represent him "too soon," he nonetheless agreed to
continue with counsel's representation and made no requests for
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that had been kept open for over two months.
An accused "may waive an attorney's conflict, but only
after an inquiry has shown that the defendant has an awareness of
the potential risks involved in that course and has knowingly
chosen it" (People v Solomon, 20 NY3d 91, 95 [2012] [internal
quotation marks and citation omitted]; see People v Wright, 27
NY3d 516, 520-521 [2016]). We agree that defense counsel's
representation of defendant while his partner simultaneously,
albeit very briefly, represented the CI, a potential key
prosecution witness, created a conflict of interest (see People v
Solomon, 20 NY3d at 94-95). Defendant argues that this gave rise
to an actual, rather than merely a potential, conflict of
interest in that the CI's interests diverged from his and the
partner actively represented the CI.3 Even assuming that there
was an actual conflict of interest (see id. at 96), we find that
defendant was fully and sufficiently apprised of the nature of
the conflict and how it could potentially impact his trial if the
CI were called to testify as a prosecution witness. Defendant
was made aware of the potential risks and knowingly and
voluntarily chose defense counsel's continued representation (see
id. at 95; People v Gomberg, 38 NY2d 307, 313-314 [1975]; compare
People v Prescott, 21 NY3d 925, 927-928 [2013]). Inasmuch as
defendant waived this conflict after an adequate inquiry by the
court and after having given his informed consent, he was not
deprived of meaningful representation (see People v Wright, 27
NY3d at 520-521; People v Solomon, 20 NY3d at 97).
Relatedly, defendant's claims that he was coerced into
additional time or another adjournment to retain substitute
counsel.
3
While County Court referred several times to this as a
"potential" conflict of interest when advising defendant, the
court did so because the CI had not testified at pretrial
proceedings and it was not clear that the CI would be testifying
at trial. We find that this characterization did not undermine
the court's advisement of the potential risks of the conflict
(see People v Solomon, 20 NY3d at 95).
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pleading guilty or denied an opportunity to retain new counsel
are unpreserved, as he made no postallocution motion on this
ground (see People v Lobaton, 140 AD3d at 1535). In any event,
this claim is belied by the record, which reflects that the
nature and risks presented by the conflict of interest were
discussed on the record at several appearances and that defendant
had numerous opportunities to confer with counsel and to retain
new counsel, including a one-week adjournment to retain new
counsel if he so chose. Thus, were we to address the issue, we
would find that defendant, having been advised that he had the
right to an attorney of his choice, elected to proceed with
counsel's representation and that his subsequent plea was "a
knowing, voluntary and intelligent choice among alternative
courses of action" (People v Conceicao, 26 NY3d 375, 382 [2015]
[internal quotation marks and citation omitted]; see People v
Fiumefreddo, 82 NY2d 536, 543 [1993]). We have reviewed
defendant's remaining contentions and conclude that they lack
merit.
McCarthy, J.P., Egan Jr., Lynch and Aarons, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court