PEOPLE v. CLAY (2026)

MEMORANDUM AND ORDER

Appeals (1) from a judgment of the County Court of Schenectady County (Mark Caruso, J.), rendered October 8, 2021, convicting defendant upon his plea of guilty of the crimes of criminal possession of a weapon in the second degree and sexual abuse in the first degree, and (2) by permission, from an order of said court (Matthew Sypniewski, J.), entered August 13, 2024, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Defendant was charged in August 2020 by a 10–count indictment with, among other crimes, criminal possession of a weapon in the second degree and sexual abuse in the first degree.  In August 2021, defendant appeared before County Court (Caruso, J.) and, after a brief recess to consider a plea offer from the People, accepted said offer and pleaded guilty to criminal possession of a weapon in the second degree and sexual abuse in the first degree in satisfaction of the indictment.  In connection with his plea, defendant waived his right to appeal orally and in writing.  In accordance with the plea agreement, defendant was sentenced, as a second felony offender, to a prison term of 10 years, to be followed by five years of postrelease supervision, for the weapon possession conviction and a concurrent prison term of seven years, to be followed by 15 years of postrelease supervision, for the sexual abuse conviction.

In July 2023, defendant filed a pro se CPL 440.10 motion, alleging ineffective assistance of counsel based upon counsel's failure to, among other things, move to withdraw his guilty plea on the basis of prosecutorial misconduct.  County Court (Sypniewski, J.) denied the motion finding, among other things, that defendant received the effective assistance of counsel.  Defendant appeals from the judgment of conviction and, by permission, the denial of his CPL article 440 motion.

On direct appeal, defendant contends that his guilty plea was not knowingly, voluntarily and intelligently entered and was the result of undue coercion.  Although defendant's claim survives his unchallenged appeal waiver (see People v. Scully, 242 A.D.3d 1259, 1259, 242 N.Y.S.3d 809 [3d Dept. 2025];  People v. Clerveau, 174 A.D.3d 1066, 1066, 104 N.Y.S.3d 767 [3d Dept. 2019], lv denied 34 N.Y.3d 949, 110 N.Y.S.3d 639, 134 N.E.3d 638 [2019]), his failure to make an appropriate postallocution motion, despite ample opportunity to do so, renders his argument unpreserved (see People v. Gibbs, 232 A.D.3d 937, 939, 219 N.Y.S.3d 808 [3d Dept. 2024];  People v. Merritt, 210 A.D.3d 1209, 1209, 178 N.Y.S.3d 254 [3d Dept. 2022];  People v. Putman, 169 A.D.3d 1114, 1115, 93 N.Y.S.3d 461 [3d Dept. 2019];  People v. Richmond, 158 A.D.3d 980, 980, 72 N.Y.S.3d 620 [3d Dept. 2018]).  “Additionally, as defendant did not make any statements during the plea colloquy or at sentencing that were inconsistent with his guilt or that otherwise called into question the voluntariness of his plea, the narrow exception to the preservation requirement is inapplicable” (People v. Drake, 179 A.D.3d 1221, 1222, 117 N.Y.S.3d 353 [3d Dept. 2020] [citations omitted], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 290, 147 N.E.3d 560 [2020];  see People v. Stuber, 205 A.D.3d 1147, 1148, 167 N.Y.S.3d 644 [3d Dept. 2022], lv denied 38 N.Y.3d 1136, 172 N.Y.S.3d 846, 193 N.E.3d 511 [2022]).  Defendant's related argument that he was unfairly compelled to plead guilty by the issuance of an overbroad protective order is foreclosed by his guilty plea (see People v. Peterson, 225 A.D.3d 1098, 1099, 207 N.Y.S.3d 732 [3d Dept. 2024];  People v. Salters, 187 A.D.3d 1677, 1677, 133 N.Y.S.3d 171 [4th Dept. 2020], lv denied 36 N.Y.3d 975, 138 N.Y.S.3d 474, 162 N.E.3d 703 [2020]) as well as his unchallenged appeal waiver (see People v. Perry, 50 A.D.3d 1244, 1245, 855 N.Y.S.2d 733 [3d Dept. 2008], lv denied 10 N.Y.3d 963, 863 N.Y.S.2d 147, 893 N.E.2d 453 [2008];  People v. Mendez, 45 A.D.3d 1109, 1110, 845 N.Y.S.2d 571 [3d Dept. 2007]).  Defendant's argument that County Court (Caruso, J.) failed to redact certain statements in the presentence report is also foreclosed by the unchallenged appeal waiver (see People v. Blair, 148 A.D.3d 1426, 1426–1427, 50 N.Y.S.3d 182 [3d Dept. 2017], lv denied 29 N.Y.3d 1029, 62 N.Y.S.3d 297, 84 N.E.3d 969 [2017];  People v. Joslin, 130 A.D.3d 1093, 1093, 13 N.Y.S.3d 612 [3d Dept. 2015], lv denied 26 N.Y.3d 1009, 20 N.Y.S.3d 550, 42 N.E.3d 220 [2015]).¹

Defendant further argues that the People engaged in prosecutorial misconduct by failing to turn over a specific photograph that depicted the victim in defendant's home on the day of the incident.  That argument, which essentially contends that the People violated their Brady obligations, is premised on defendant's unsupported belief that the People possessed the photograph and withheld it.²  That argument lacks merit.  Given the description of the photograph advanced by defendant, it would be inculpatory in nature and, therefore, would not fall within the Brady rule (see People v. Kocsis, 137 A.D.3d 1476, 1478, 28 N.Y.S.3d 466 [3d Dept. 2016];  People v. Hotaling, 135 A.D.3d 1171, 1173, 23 N.Y.S.3d 715 [3d Dept. 2016];  People v. Battease, 3 A.D.3d 601, 603, 771 N.Y.S.2d 224 [3d Dept. 2004];  People v. Edkin, 210 A.D.2d 808, 809, 621 N.Y.S.2d 395 [3d Dept. 1994];  see also People v. Ruple, 239 A.D.3d 1040, 1044, 235 N.Y.S.3d 725 [3d Dept. 2025], lv denied 44 N.Y.3d 1013, 244 N.Y.S.3d 512, 271 N.E.3d 714 [2025]).  Moreover, in insisting that the People failed to turn over the photograph, defendant relied on the People's CPL 245.20 disclosure form which indicated that they were in possession of photographs of defendant's address;  however, there was no indication as to the date of those photographs or whether the victim was depicted in them (see People v. Ruple, 239 A.D.3d at 1044, 235 N.Y.S.3d 725).  In fact, at sentencing, the People confirmed that the photograph that defendant described was not in their possession.  Thus, there is no basis to find that a Brady violation had occurred (see People v. Watson, 198 A.D.2d 461, 463, 603 N.Y.S.2d 903 [2d Dept. 1993], lv denied 83 N.Y.2d 811, 611 N.Y.S.2d 147, 633 N.E.2d 502 [1994];  People v. Mullady, 180 A.D.2d 408, 409, 579 N.Y.S.2d 365 [1st Dept. 1992], lv denied 80 N.Y.2d 835, 587 N.Y.S.2d 920, 600 N.E.2d 647 [1992]).

The resolution of the Brady contention dovetails with defendant's arguments with respect to the denial of his CPL 440.10 motion without a hearing.  Defendant's principal arguments on his motion are premised on counsel's purported failure to secure the aforementioned photograph from the People and the corresponding failure to file a motion to withdraw his plea once counsel learned that the photograph was not in the People's possession.  However, “[a]s there is no indication that the [purported photograph] contained exculpatory evidence, there is no support for defendant's contention that possession of [it] would have influenced his decision to plead guilty” (People v. Miles, 205 A.D.3d 1222, 1224, 168 N.Y.S.3d 187 [3d Dept. 2022], lv denied 38 N.Y.3d 1189, 176 N.Y.S.3d 210, 197 N.E.3d 490 [2022]).  Further, prior to sentencing, defendant became aware that the photograph was not in the People's possession, and he made no assertion in his supporting affidavit that he asked counsel to withdraw his plea at that time (see e.g. People v. Jackson, 159 A.D.3d 1276, 1277, 73 N.Y.S.3d 676 [3d Dept. 2018], lv denied 31 N.Y.3d 1149, 83 N.Y.S.3d 431, 108 N.E.3d 505 [2018]).  Rather, what is abundantly clear from this record is that counsel secured an extremely favorable plea for defendant in the face of significant sentencing exposure, particularly considering his lengthy criminal history (see People v. Gonyea, 211 A.D.3d 1102, 1104–1105, 178 N.Y.S.3d 814 [3d Dept. 2022], lv denied 39 N.Y.3d 1110, 186 N.Y.S.3d 847, 208 N.E.3d 75 [2023];  People v. Fish, 208 A.D.3d 1546, 1549, 175 N.Y.S.3d 602 [3d Dept. 2022];  People v. Brunner, 244 A.D.2d 831, 832, 666 N.Y.S.2d 247 [3d Dept. 1997];  see also People v. Sabin, 179 A.D.3d 1401, 1403, 118 N.Y.S.3d 769 [3d Dept. 2020], lv denied 35 N.Y.3d 995, 125 N.Y.S.3d 628, 149 N.E.3d 389 [2020]).  Accordingly, when viewing the totality of his representation, we find no basis to conclude that counsel was deficient and are satisfied that County Court (Sypniewski, J.) properly denied the motion without a hearing (see People v. Guilianelle, 233 A.D.3d 1179, 1181, 223 N.Y.S.3d 404 [3d Dept. 2024], lv denied 43 N.Y.3d 1009, 234 N.Y.S.3d 797, 261 N.E.3d 932 [2025];  People v. Kuhn, 221 A.D.3d 1182, 1185, 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]).  “To the extent that defendant suggests that he would not have pleaded guilty but for counsel's purported errors, our determination as to the sufficiency of counsel's representation renders his argument without merit” (People v. Drake, 224 A.D.3d 1138, 1142, 205 N.Y.S.3d 789 [3d Dept. 2024];  see People v. Mangarillo, 152 A.D.3d 1061, 1065–1066, 59 N.Y.S.3d 572 [3d Dept. 2017]).  Defendant's remaining contentions, to the extent not addressed, have been considered and found unavailing.

ORDERED that the judgment and the order are affirmed.

FOOTNOTES

1.   A number of the challenged statements in the presentence report were removed by County Court (Caruso, J.) at defendant's request and, as defendant did not object to those alterations, he has waived any contention thereto (see People v. Bailey, 232 A.D.3d 1031, 1035 n. 3, 222 N.Y.S.3d 721 [3d Dept. 2024], lv denied 43 N.Y.3d 929, 229 N.Y.S.3d 95, 254 N.E.3d 639 [2025];  People v. Walworth, 167 A.D.2d 622, 623, 562 N.Y.S.2d 852 [3d Dept. 1990]).

2.   Although defendant advances this position in his appellate brief, it is notable that his affidavit in support of his CPL 440.10 motion essentially concedes that the People did not possess a photograph matching the description he provided.

McShan, J.

Pritzker, J.P., Fisher, Powers and Mackey, JJ., concur.