PEOPLE v. MAYHEW (2021)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered September 16, 2016, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree.

Following an investigation stemming from a fatal drug overdose, police obtained a search warrant for defendant's home.  Upon executing the warrant, police uncovered, among other things, a pistol and heroin.  Defendant was charged by indictment with criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and two counts of criminal possession of a controlled substance in the third degree.  Pursuant to a negotiated plea agreement, defendant pleaded guilty to criminal possession of a weapon in the second degree.  Defendant was sentenced, as a second felony offender, to the agreed-upon prison term of six years, followed by five years of postrelease supervision.  Defendant appeals.¹

Defendant contends that counsel's failure to challenge the validity of the search warrant deprived him of the effective assistance of counsel, arguing that the warrant was facially invalid under CPL 690.35(2) and was not supported by probable cause.  To the extent that defendant's claim of ineffective assistance of counsel implicates the voluntariness of his plea, it is unpreserved for our review insofar as the record does not reflect that he made an appropriate postallocution motion to vacate the plea despite an opportunity to do so (see People v. Lafond, 189 A.D.3d 1824, 1825, 137 N.Y.S.3d 222 [2020];  People v. Horton, 173 A.D.3d 1342, 1343, 102 N.Y.S.3d 761 [2019], lv denied 34 N.Y.3d 932, 109 N.Y.S.3d 701, 133 N.E.3d 401 [2019];  People v. Brown, 170 A.D.3d 1375, 1376–1377, 96 N.Y.S.3d 722 [2019], lv denied 33 N.Y.3d 1029, 102 N.Y.S.3d 510, 126 N.E.3d 160 [2019];  People v. Fiske, 68 A.D.3d 1149, 1150, 889 N.Y.S.2d 746 [2009], lv denied 14 N.Y.3d 800, 899 N.Y.S.2d 134, 925 N.E.2d 938 [2010]).  The narrow exception to the preservation rule does not apply, as defendant did not make any statements during the plea colloquy that negated an element of the crime ² or that otherwise called into question the voluntariness of his plea (see People v. Pastor, 28 N.Y.3d 1089, 1090–1091, 45 N.Y.S.3d 317, 68 N.E.3d 42 [2016];  People v. Drake, 179 A.D.3d 1221, 1222, 117 N.Y.S.3d 353 [2020], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 290, 147 N.E.3d 560 [2020]).

Although recognizing that his argument is unpreserved, defendant asks this Court to take corrective action by vacating the plea in the interest of justice (see CPL 470.15[3][c]).  We deny defendant's request to do so, as counsel was not ineffective in failing to challenge the validity of the search warrant.  CPL 690.35(2)(a) requires an application for a search warrant to be made to a “local criminal court.”  A local criminal court means, as relevant here, a city court or “[a] county judge sitting as a local criminal court” (CPL 10.10[3][c], [g];  see CPL 10.20[3][c]).  Here, a police sergeant submitted a warrant application to Judge Steven Forrest – a Judge of the Elmira City Court – and requested that “[t]he [c]ourt” issue a search warrant for defendant's residence.  The warrant listed the issuing judge as “Elmira City Court Judge Steven Forrest” and required any property seized pursuant to its authority to be returned to “th[e] court.”  A preprinted statement below the signature line also listed Judge Forrest as Elmira City Court Judge, but he signed the warrant as “Acting Chemung County Court Judge.”  In these circumstances, Judge Forrest was authorized to issue the search warrant regardless of whether he was sitting as a City Court Judge or as an Acting County Judge insofar as he was exercising the preliminary jurisdiction of the local criminal court (see CPL 10.10[3][c];  10.20[3][c];  see generally People v. P.J. Video, 65 N.Y.2d 566, 569, 493 N.Y.S.2d 988, 483 N.E.2d 1120 [1985], revd on other grounds 475 U.S. 868, 106 S.Ct. 1610, 89 L.Ed.2d 871 [1986];  People v. Rhoades, 166 Misc.2d 979, 980, 637 N.Y.S.2d 618 [1995];  compare Titus v. Hill, 134 A.D.2d 911, 912, 521 N.Y.S.2d 932 [1987]).  Moreover, contrary to defendant's contention, the sworn statements of two confidential informants submitted in conjunction with the warrant application satisfied the Aguilar–Spinelli test (see Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 [1969];  Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 [1964]) and provided probable cause to believe that Perc 30 pills would be found in defendant's residence.  Therefore, as success on a motion attacking the validity of the search warrant would be unlikely, trial counsel did not render ineffective assistance and there is no cause to vacate the plea in the interest of justice (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005];  People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004];  People v. Spencer, 169 A.D.3d 1268, 1271, 95 N.Y.S.3d 435 [2019], lvs denied 34 N.Y.3d 935, 938, 109 N.Y.S.3d 727, 133 N.E.3d 431 [2019]).

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   The prior counsel assigned to represent defendant on the appeal filed an Anders brief contending that there were no nonfrivolous issues that could be raised.  This Court rejected counsel's Anders brief, withheld decision and assigned new counsel to represent defendant on the appeal (176 A.D.3d 1316, 108 N.Y.S.3d 905 [2019]).

2.   When asked during the plea colloquy whether the firearm was loaded at the time the police found it, defendant stated, “I think so, yes.”  However, when County Court inquired further, defendant unequivocally confirmed that the firearm was loaded (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988]).

Lynch, J.

Garry, P.J., Aarons, Pritzker and Reynolds Fitzgerald, JJ., concur.