PEOPLE v. ROBINSON (2025)

MEMORANDUM AND ORDER

Appeals (1) from a judgment of the County Court of Tioga County (Gerald Keene, J.), rendered March 16, 2020, convicting defendant upon his plea of guilty of the crimes of robbery in the second degree, criminal use of a firearm in the second degree and grand larceny in the fourth degree, and (2) by permission, from an order of said court (Adam Schumacher, J.), entered May 16, 2023, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Defendant was charged by indictment with robbery in the second degree, criminal use of a firearm in the second degree and grand larceny in the fourth degree.  Defendant agreed to plead guilty as charged, with the understanding that he would be sentenced to a total of nine years in prison, to be followed by five years of postrelease supervision, and that County Court would order his enrollment in the comprehensive alcohol and substance abuse treatment (hereinafter CASAT) program.  County Court (Keene, J.) thereafter sentenced defendant, as a second felony offender, to concurrent sentences that amounted to nine years in prison, to be followed by five years of postrelease supervision.  The court also directed that defendant be enrolled in CASAT.  Defendant then moved pro se to vacate the judgment of conviction pursuant to CPL 440.10 asserting, among other things, insufficient notice to appear before the grand jury, involuntary plea and ineffective assistance of counsel.  County Court (Schumacher, 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, by failing to move to dismiss the indictment on these grounds, defendant has waived his claims on direct appeal that he was deprived of his statutory right to testify before the grand jury (see People v. Vasquez, 210 A.D.3d 1302, 1303, 178 N.Y.S.3d 618 [3d Dept. 2022], lv denied 39 N.Y.3d 1080, 184 N.Y.S.3d 296, 204 N.E.3d 1077 [2023];  People v. Sutherland, 104 A.D.3d 1064, 1065, 962 N.Y.S.2d 463 [3d Dept. 2013]), that he was denied his constitutional right to a speedy trial (see People v. Hinds, 217 A.D.3d 1138, 1141, 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. Griner, 207 A.D.3d 892, 892–893, 172 N.Y.S.3d 193 [3d Dept. 2022]) and that certain counts in the indictment were multiplicitous (see People v. Marcantonio, 238 A.D.3d 1262, 1265, 233 N.Y.S.3d 808 [3d Dept. 2025];  People v. Latnie, 180 A.D.3d 1238, 1243–1244, 119 N.Y.S.3d 291 [3d Dept. 2020]).  As to his claim in his pro se CPL article 440 motion of ineffective assistance of counsel premised on defense counsel's failure to afford him an opportunity to testify before the grand jury or move to dismiss the indictment on this ground, even assuming, without deciding, that defendant could demonstrate an absence of strategic or legitimate reasons for failing to do so, he has not demonstrated that the outcome of the proceeding would have been different had he testified (see People v. Hogan, 26 N.Y.3d 779, 787, 28 N.Y.S.3d 1, 48 N.E.3d 58 [2016];  People v. Vasquez, 210 A.D.3d at 1303, 178 N.Y.S.3d 618).  Although defendant summarily argued in his CPL article 440 motion that counsel was ineffective for failing to move to dismiss the indictment on speedy trial grounds, it was unsupported by any evidence and, therefore, County Court properly determined that no hearing was required as to this argument (see CPL 440.30[4][b];  People v. Johnson, 221 A.D.3d 1172, 1176, 200 N.Y.S.3d 489 [3d Dept. 2023], lv denied 41 N.Y.3d 965, 208 N.Y.S.3d 533, 232 N.E.3d 211 [2024]).

We reject defendant's contention that County Court (Keene, J.) erred in denying his motion to dismiss the indictment based upon insufficient grand jury instructions.  Our review of the grand jury minutes reveals that the People properly instructed the grand jury on the crimes charged and that the instructions were recorded in the minutes (see CPL 190.25[6];  People v. Newman, 169 A.D.3d 1157, 1157, 94 N.Y.S.3d 400 [3d Dept. 2019];  People v. Waddell, 78 A.D.3d 1325, 1326, 910 N.Y.S.2d 317 [3d Dept. 2010], lv denied 16 N.Y.3d 837, 921 N.Y.S.2d 202, 946 N.E.2d 190 [2011]).

Defendant also argued in his CPL article 440 motion that his plea must be vacated because, as part of the plea agreement, County Court promised to order him to be enrolled in CASAT, a promise that could not be fulfilled because CASAT is only available to individuals convicted of drug-related offenses (see Penal Law § 60.04[6]).  We agree.  “A guilty plea induced by an unfulfilled promise either must be vacated or the promise honored” (People v. Collier, 22 N.Y.3d 429, 433, 982 N.Y.S.2d 34, 5 N.E.3d 5 [2013] [internal quotation marks, brackets and citations omitted], cert denied 573 U.S. 908, 134 S.Ct. 2730, 189 L.Ed.2d 770 [2014];  accord People v. Regan, 199 A.D.3d 1067, 1068, 156 N.Y.S.3d 543 [3d Dept. 2021]).  Defendant was not enrolled in CASAT as he was not statutorily eligible for participation (see Penal Law § 60.04[6];  People v. Colt, 39 A.D.3d 770, 770, 832 N.Y.S.2d 441 [2d Dept. 2007]), so the promise cannot be honored.  Moreover, the record reflects that the mandate for CASAT enrollment was “part and parcel of defendant's plea agreement” (People v. Regan, 199 A.D.3d at 1068, 156 N.Y.S.3d 543 ;  compare People v. Brown, 58 A.D.3d 540, 540, 871 N.Y.S.2d 133 [1st Dept. 2009], lv denied 12 N.Y.3d 814, 881 N.Y.S.2d 22, 908 N.E.2d 930 [2009];  People v. Martin, 55 A.D.3d 1304, 1304, 864 N.Y.S.2d 593 [4th Dept. 2008], lv denied 11 N.Y.3d 899, 873 N.Y.S.2d 275, 901 N.E.2d 769 [2008]).  Thus, defendant is entitled to vacatur of his guilty plea (see People v. Regan, 199 A.D.3d at 1069, 156 N.Y.S.3d 543;  People v. Smith, 160 A.D.3d 1475, 1476, 72 N.Y.S.3d 910 [4th Dept. 2018]).  In light of the foregoing, defendant's remaining arguments on appeal are academic.

ORDERED that the judgment and the order are reversed, on the law, and matter remitted to the County Court of Tioga County for further proceedings not inconsistent with this Court's decision.

Reynolds Fitzgerald, J.

Clark, J.P., Pritzker, McShan and Powers, JJ., concur.