PEOPLE v. GUILIANELLE (2024)

MEMORANDUM AND ORDER

Appeals (1) from a judgment of the County Court of Saratoga County (James A. Murphy III, J.), rendered September 21, 2018, convicting defendant upon his plea of guilty of the crime of attempted sexual abuse in the first degree, and (2) by permission, from an order of said court (Chad W. Brown, J.), entered July 12, 2022, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

In satisfaction of a two-count indictment, defendant pleaded guilty to the reduced charge of attempted sexual abuse in the first degree and agreed to waive his right to appeal.  Pursuant to the terms of the plea agreement, County Court (Murphy III, J.) sentenced defendant, as second felony offender, to a prison term of 21/212 years, to be followed by 10 years of postrelease supervision (hereinafter PRS).  Defendant thereafter moved to vacate the judgment of conviction pursuant to CPL 440.10, premised upon a claim of ineffective assistance of counsel that rendered his plea involuntary.  County Court (Brown, J.) denied the motion without a hearing.  Defendant appeals from the judgment of conviction and, by permission, from the denial of his motion to vacate.

Initially, the People concede – and our review of the record confirms – that defendant's waiver of his right to appeal is invalid as the written waiver contained overbroad language and the brief oral colloquy did not sufficiently explain the nature and ramifications of the appeal waiver, remedy the defects in the written waiver or otherwise inform defendant that some appellate rights survived (see People v. Loya, 215 A.D.3d 1181, 1182, 187 N.Y.S.3d 444 [3d Dept. 2023], lv denied 40 N.Y.3d 929, 192 N.Y.S.3d 502, 213 N.E.3d 644 [2023];  People v. Francis, 213 A.D.3d 1031, 1032, 181 N.Y.S.3d 907 [3d Dept. 2023], lv denied 39 N.Y.3d 1154, 190 N.Y.S.3d 672, 211 N.E.3d 1125 [2023]).  Accordingly, defendant's challenge to the 10–year period of PRS as harsh and excessive is not precluded (see People v. Ellis, 229 A.D.3d 1006, 1007, 214 N.Y.S.3d 265 [3d Dept. 2024];  People v. Werner, 227 A.D.3d 1273, 1273, 212 N.Y.S.3d 459 [3d Dept. 2024]).  That said, upon considering all of the relevant factors, we are unpersuaded that the period of PRS is unduly harsh or severe, notwithstanding that defendant is required to register as a sex offender and will be subject to an additional level of supervision (see CPL 470.15[6][b]).

Defendant's claim that County Court (Murphy III, J.) did not sufficiently explain that he would be forfeiting his right against self-incrimination by pleading guilty is unpreserved for our review, as defendant did not make an appropriate postallocution motion to withdraw his plea, despite ample opportunity to do so before sentencing, and the narrow exception to the preservation rule was not implicated (see People v. Loya, 215 A.D.3d at 1183, 187 N.Y.S.3d 444;  People v. Kimball, 213 A.D.3d 1028, 1030, 183 N.Y.S.3d 198 [3d Dept. 2023], lv denied 40 N.Y.3d 929, 192 N.Y.S.3d 518, 213 N.E.3d 661 [2023];  People v. Nichols, 194 A.D.3d 1114, 1115, 146 N.Y.S.3d 699 [3d Dept. 2021], lv denied 37 N.Y.3d 973, 150 N.Y.S.3d 700, 172 N.E.3d 812 [2021]).  In any event, were we to consider the issue, we would find it to be without merit as the record reflects that the court sufficiently advised defendant of the trial-related rights being forfeited and that defendant “intelligently and understandingly waived [those] constitutional rights” (People v. Conceicao, 26 N.Y.3d 375, 383, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015];  see People v. Werner, 227 A.D.3d at 1274, 212 N.Y.S.3d 459;  People v. Moore, 201 A.D.3d 1209, 1211, 159 N.Y.S.3d 766 [3d Dept. 2022]).

Next, we turn to defendant's contention that County Court (Brown, J.) erred in denying his motion to vacate the judgment of conviction pursuant to CPL 440.10(1)(h), without a hearing.  “On a motion to vacate a judgment of conviction under CPL 440.10, a hearing is only required if the submissions show that the nonrecord facts sought to be established are material and would entitle the defendant to relief.  Furthermore, a court may deny a vacatur motion without a hearing if it is based on the defendant's self-serving claims that are contradicted by the record or unsupported by any other evidence” (People v. Dunbar, 218 A.D.3d 931, 933–934, 193 N.Y.S.3d 397 [3d Dept. 2023] [internal quotation marks and citations omitted], lv denied 40 N.Y.3d 950, 195 N.Y.S.3d 677, 217 N.E.3d 698 [2023]).

Defendant's CPL 440.10 motion was premised on two grounds.  As to the first of these, defendant contends that his plea was involuntarily made because he was unduly pressured and coerced by defense counsel's repeated insistence that defendant accept the plea or forego ever seeing his ailing father outside of prison.  Defendant's allegation is contradicted by the record, which reflects that defendant unequivocally confirmed that he was satisfied with counsel's representation and was entering the plea freely, without any force or coercion (see CPL 440.30[4][d];  People v. Crampton, 201 A.D.3d 1020, 1024, 159 N.Y.S.3d 263 [3d Dept. 2022], lv denied 37 N.Y.3d 1160, 160 N.Y.S.3d 690, 181 N.E.3d 1118 [2022];  People v. Gassner, 193 A.D.3d 1182, 1185, 147 N.Y.S.3d 191 [3d Dept. 2021], lv denied 37 N.Y.3d 956, 147 N.Y.S.3d 523, 170 N.E.3d 397 [2021]).  Moreover, this issue “could with due diligence by ․ defendant have readily been made to appear on the record in a manner providing adequate basis for review of such ground or issue upon an appeal from the judgment” as defendant was aware of his father's failing health at the time of the plea (CPL 440.10[3][a]).  As for the second ground, defendant alleged that counsel failed to investigate or pursue certain information but, other than his own affidavit, defendant provided no further supporting affidavit or evidence (see People v. Kuhn, 221 A.D.3d 1182, 1184, 200 N.Y.S.3d 169 [3d Dept. 2023], lv denied 41 N.Y.3d 1019, 214 N.Y.S.3d 311, 237 N.E.3d 1251 [2024];  People v. Hinds, 217 A.D.3d 1138, 1142, 191 N.Y.S.3d 533 [3d Dept. 2023], lv denied 40 N.Y.3d 951, 195 N.Y.S.3d 672, 217 N.E.3d 693 [2023];  People v. Vittengl, 203 A.D.3d 1390, 1393, 163 N.Y.S.3d 715 [3d Dept. 2022]).  Further, other than a generalized assertion regarding the lack of an independent investigation by counsel, defendant offers no indication of what helpful or exculpatory information an independent investigation would have yielded in relation to the charges (compare People v. Oliveras, 21 N.Y.3d 339, 348, 971 N.Y.S.2d 221, 993 N.E.2d 1241 [2013]).  Given defendant's unsupported self-serving affidavit, the favorable plea agreement and lack of evidence in the record that casts doubt on counsel's apparent effectiveness, we find no abuse of discretion in County Court's denial of defendant's motion to vacate the judgment without a hearing (see People v. Drake, 224 A.D.3d 1138, 1142, 205 N.Y.S.3d 789 [3d Dept. 2024];  People v. Jones, 101 A.D.3d 1482, 1483, 956 N.Y.S.2d 703 [3d Dept. 2012], lv denied 21 N.Y.3d 1017, 971 N.Y.S.2d 499, 994 N.E.2d 395 [2013]).

ORDERED that the judgment and the order are affirmed.

Clark, J.P.

Lynch, Reynolds Fitzgerald, Ceresia and Powers, JJ., concur.