Majority
Appeal from a judgment of the County Court of Schenectady County (Drago, J.), rendered July 16, 2014, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fifth degree.
In October 2013, defendant was charged in a four-count indictment with the crimes of criminal possession of a controlled substance in the fifth degree (two counts) and criminal sale of a controlled substance in the fourth degree (two counts). He thereafter pleaded guilty, pursuant to a plea agreement, to criminal possession of a controlled substance in the fifth degree in full satisfaction of the indictment and executed a written waiver of his right to appeal in open court. Consistent with the terms of the plea agreement, County Court sentenced defendant to five years of probation, imposed 100 hours of community
Defendant maintains that he was deprived of meaningful representation concerning his plea because defense counsel misinformed him that he could still appeal a claim of juror bias. This issue came to light at sentencing. When asked by County Court if he wished to be heard, defendant responded, “I guess the only thing I wanted to say is that I wanted to make sure — I know you can’t appeal this, but I wanted to appeal the things that — [defense counsel] said I can go to the [a]ppellate [c]ourt, because the member of the grand jury was a friend of mine for six years, a neighbor.” Defense counsel directly responded that “[h]e certainly can appeal it” and added, “I’ve explained it to him probably 20 times” — leaving little question that “it” refers to the juror bias claim. Defendant countered, “No, today was the first time you ever explained that to me.” County Court left the issue unresolved, simply responding that “if you feel you have an appealable issue that the Appellate Division can hear you certainly have the right to appeal.”
While defendant couches his claim in terms of an invalid appeal waiver, we find that defendant’s claim actually presents a threshold question of forfeiture, i.e., whether a claim of potential juror bias in the grand jury survives a plea. Notably, defendant made no such specific claim in his preplea motion to dismiss the indictment, contending only generally that the proceedings were impaired by irregularities (see CPL 210.35 [5]; compare People v Washington, 82 AD3d 1675 , 1676 [2011], lv denied 19 NY3d 1106 [2012]). County Court denied the motion, finding no infirmities in the grand jury minutes that would warrant a dismissal. Since we do not perceive the claim to be jurisdictional or to implicate “rights of a constitutional dimension that go to the very heart of the process” (People v Hansen, 95 NY2d 227 , 230-231 [2000]), we conclude that a claim of juror bias would actually be forfeited upon a guilty plea (see People v Hansen, 95 NY2d at 231 ).
Inasmuch as defendant’s misunderstanding as to his ability to appeal the juror bias issue was brought to County Court’s attention at sentencing, we find that defendant’s challenge to the voluntariness of his plea has been sufficiently preserved for our review (see generally CPL 470.05 [2]; compare People v Garay, 25 NY3d 62 , 67 [2015], cert denied 577 US —, 136 S Ct 501 [2015]; People v Green, 54 NY2d 878 , 880 [1981]), notwithstanding the absence of an appropriate postallocution motion. Once County Court learned that defendant had been given erroneous advice by counsel, the court should have conducted a
Dissent
Egan Jr., Rose and Aarons, JJ., concur.
(dissenting). Because the record does not support the conclusion that defendant preserved the issue or that he was provided ineffective assistance of counsel, I respectfully dissent. The majority concludes that, based on statements that defendant and his counsel made at a sentencing hearing, counsel conceded to having advised defendant that he would be able to raise a grand jury issue on appeal, despite defendant having pleaded guilty and having waived his right to appeal. The majority finds that County Court ought to have interpreted the statements in the same manner that the majority now does and concluded that counsel was describing erroneous legal advice — despite no one arguing that it was erroneous legal advice or seeking any legal relief whatsoever from the court— and that therefore defendant preserved the contention that his plea was involuntary based upon ineffective assistance of counsel. Further, and rather than answering the purely legal question of whether defendant’s contentions even amounted to a prima facie ineffective assistance of counsel claim, the majority determines that it ought to remit and “refer[ ]” the issue to County Court for further inquiry. Contrary to these conclusions, defendant’s contention is not preserved, and, even assuming that he received erroneous legal advice, he failed to make out a prima facie claim that he was deprived of meaningful representation. Accordingly, the judgment should be affirmed.
Initially, “[w]hile defendant’s waiver of his right to appeal does not bar his ineffective assistance of counsel claim insofar as it relates to the voluntariness of his plea, his failure to move
Even if I assumed, for the sake of argument, that the majority correctly interprets the record in concluding that defense counsel indicated that she advised defendant that he could raise his grand jury claim on appeal,[2] defendant would still have failed as a matter of law to establish any resulting prejudice. With regard to a guilty plea, in order to establish an ineffective assistance of counsel claim pursuant to the federal constitution, a defendant must prove, among other things, “that there is a reasonable probability that, but for counsel’s errors, he [or she] would not have pleaded guilty and would have insisted on going to trial” (Hill v Lockhart, 474 US 52 , 59 [1985]; accord People v McDonald, 1 NY3d 109 , 114 [2003]). Here, defendant failed to make even a prima facie showing of prejudice given that he made no assertion that, but for his
1 According to the majority’s logic, the fact that an alleged error occurs before a trial court “brfings] to County Court’s attention” the error, thereby preserving it. That logic is directly contrary to the legal requirement that a litigant such as defendant “expressly or impliedly s[eek] or request] ] a particular ruling or instruction” in order to preserve an issue (CPL 470.05 [2]). One cannot conclude that defendant, in making a statement about his desire to appeal that did not even reference his guilty plea, impliedly sought to withdraw or vacate his guilty plea based on ineffective assistance of counsel. Further, it is unreasonable to expect that County Court should have concluded that defendant was attempting to make out an ineffective assistance of counsel claim based on the colloquy that occurred at sentencing, particularly in light of defendant’s previous assurance, at the time of the plea, that he was satisfied with the services of counsel.
2 At no point in the colloquy did counsel state that she advised defendant that his grand jury issue could be reviewed by an appellate court; in the midst of a larger discussion, she stated that “[defendant] certainly can appeal it.” It is ambiguous what “it” refers to in this context, since it could either mean the judgment — describing correct legal advice — or defendant’s particular grand jury issue — describing incorrect legal advice. The majority’s decision to resolve this ambiguity in favor of the conclusion that counsel gave erroneous legal advice is difficult to reconcile with our obligation to employ a presumption of competence on the part of an attorney in the context of an ineffective assistance of counsel claim (see Strickland v Washington, 466 US 668 , 689 [1984]; People v Rivera, 71 NY2d 705 , 709 [1988]; People v Torres, 13 AD3d 562 , 563 [2004]; People v Vecchio, 228 AD2d 820 , 821 [1996]).
Finally, defendant also failed to make a prima facie claim that he was, despite the absence of prejudice, deprived of meaningful representation pursuant to the NY Constitution. “So long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met” (People v Baldi, 54 NY2d 137 , 147 [1981] [citations omitted]; accord People v Rivera, 71 NY2d 705 , 708 [1988]). Even if defendant’s grand jury contention could survive his guilty plea and his appeal waiver, it would be unpreserved for our review — a fact that the majority concedes — given his failure to raise this specific claim in his motion to dismiss the indictment (see People v Miller, 27 AD3d 1017 , 1018 [2006]; People v Stabb, 9 AD3d 738 , 739 [2004], lv denied 3 NY3d 712 [2004]). Further, defendant does not contend that defense counsel ought to have raised the issue in the motion to dismiss the indictment; this may be for good reason, as a review of the grand jury minutes establishes that there is no factual basis for defendant’s assertion that a friend and neighbor served on the grand jury. Thus, the single, nonprejudicial error that the majority finds warrants remittal was counsel’s legal advice regarding the merits of an unpreserved issue that counsel may have already investigated and determined had no factual basis.
Moreover, meaningful representation inquiries must consider the representation as a whole. After defendant was charged with two class C felonies and two class D felonies (see Penal Law §§ 220.06, 220.34), his counsel secured a plea bargain to one class D felony, which automatically reduced defendant’s maximum exposure from any single count from a prison term of 5V2 years to a prison term of 2V2 years (compare Penal Law § 70.70 [2] [a] [ii] with Penal Law § 70.70 [2] [a] [iii]). In addition, terms of the plea agreement capped defendant’s potential incarceration to a six-month jail term. Further, after defense
3 The burden of proving ineffective assistance of counsel is on a defendant and not on a trial court. There is no basis in law for the majority’s conclusion that County Court, in the midst of conducting a sentencing hearing, was required to conduct a “further inquiry to ascertain whether defendant wished to go forward with the plea.”
Ordered that the order is modified, on the law, by vacating the sentence imposed; matter remitted to the County Court of Schenectady County for further proceedings not inconsistent with this Court’s decision; and, as so modified, affirmed.
Cases cited
- People v. Washington 82 AD3d 1675 at 1676 p. 724
- People v. Hansen 95 NY2d 227 at 230-231 p. 724
- People v. Garay 25 NY3d 62 at 67 p. 724
- People v. Green 54 NY2d 878 at 880 p. 724
- People v. Bendross 153 AD2d 75 at 76-77 p. 725
- People v. Bass 118 AD3d 1033 at 1034 p. 725
- People v. Denegar 130 AD3d 1140 at 1141-1142 p. 725
- People v. Dobrouch 59 AD3d 781 at 781 p. 726
- People v. Lord 128 AD3d 1277 at 1278 p. 726
- People v. Royce 122 AD3d 1008 at 1009 p. 726
- People v. Ildefonso 89 AD3d 1327 at 1327 p. 726
- People v. Pickett 128 AD3d 1275 at 1276 p. 726
- Hill v. Lockhart 474 US 52 at 59 p. 726
- People v. McDonald 1 NY3d 109 at 114 p. 726
- People v. Williams 72 AD3d 1347 at 1348 p. 727
- People v. Baldi 54 NY2d 137 at 147 p. 727
- People v. Rivera 71 NY2d 705 at 708 p. 727
- People v. Miller 27 AD3d 1017 at 1018 p. 727
- People v. Stabb 9 AD3d 738 at 739 p. 727
- People v. Briggs 138 AD3d 1355 at 1356 p. 728
- People v. Wares 124 AD3d 1079 at 1081 p. 728
- People v. Carlton 120 AD3d 1443 at 1444-1445 p. 728