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The PEOPLE of the State of New York, Respondent, v. Adrian PHILLIP, Also Known as AD, Appellant.
MEMORANDUM AND ORDER
Appeals (1) from a judgment of the Supreme Court (Schick, J.), rendered June 26, 2017 in Sullivan County, convicting defendant upon his plea of guilty of the crimes of conspiracy in the second degree and criminal possession of a controlled substance in the first degree, and (2) by permission, from an order of said court, entered March 2, 2020 in Sullivan County, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
Pursuant to a negotiated plea agreement, defendant pleaded guilty to one count of conspiracy in the second degree and one count of criminal possession of a controlled substance in the first degree. Prior to sentencing, defendant moved, pro se, to withdraw his plea. Defense counsel did not adopt this motion and informed Supreme Court that he did not feel that he had a legal or factual basis for doing so, and the court denied the motion. In June 2017, the court sentenced defendant to a prison term of 12 years to be followed by five years of postrelease supervision for his drug possession conviction, together with a lesser concurrent term for his conspiracy conviction. In November 2019, defendant moved, pro se, to vacate the judgment of conviction due to, among other things, the alleged ineffective assistance of counsel. The court denied defendant's motion without a hearing. Defendant appeals from the judgment of conviction and, with this Court's permission, from the order denying his CPL article 440 motion.
Initially, defendant's argument that his plea was involuntary because he was not informed of his possible sentencing exposure is unpreserved, as “defendant did not raise it in his motion to withdraw his guilty plea” (People v. Williams, 189 A.D.3d 1978, 1980, 138 N.Y.S.3d 690 ; see People v. Borden, 91 A.D.3d 1124, 1126, 936 N.Y.S.2d 752 , lv denied 19 N.Y.3d 862, 947 N.Y.S.2d 411, 970 N.E.2d 434 ). The argument that his plea was coerced by the connected pleas of other codefendants, including his sister, is similarly unpreserved. Although a defendant's statements at sentencing may trigger the narrow exception to the preservation requirement (see People v. Gresham, 151 A.D.3d 1175, 1178, 57 N.Y.S.3d 532 ), here, defendant's bare assertion that the connected pleas forced him to plead guilty did not raise a “legitimate question about the voluntariness of defendant's plea” (People v. Farnsworth, 140 A.D.3d 1538, 1540, 34 N.Y.S.3d 713 ; see People v. Walker, 173 A.D.3d 1561, 1562, 101 N.Y.S.3d 675 ). A plea agreement is not coercive “simply because it affords a benefit to a loved one, as long as the plea itself is knowingly, voluntarily and intelligently made” (People v. Etkin, 284 A.D.2d 579, 580, 728 N.Y.S.2d 205 , lv denied 96 N.Y.2d 862, 730 N.Y.S.2d 36, 754 N.E.2d 1119 ), and “the inclusion of a third-party benefit in a plea bargain is simply one factor for a trial court to weigh in making the overall determination whether the plea is voluntarily entered” (People v. Fiumefreddo, 82 N.Y.2d 536, 545, 605 N.Y.S.2d 671, 626 N.E.2d 646  [internal quotation marks, brackets and citation omitted]). In this case, Supreme Court conducted “a detailed plea colloquy wherein defendant admitted his guilt, repeatedly verified that he was not being coerced or threatened into pleading guilty[ and] acknowledged that he was pleading guilty of his own free will” (People v. Walker, 173 A.D.3d at 1562, 101 N.Y.S.3d 675).
Defendant received the statutory minimum prison sentence of 12 years on one conviction, concurrent to a lesser sentence, followed by five years of postrelease supervision. This was a highly favorable agreement given the considerable evidence of guilt and the fact that he was charged with five felonies, each carrying a potential maximum prison sentence of either 12 or 24 years. The advantageous nature of the agreement undercuts defendant's contention that his plea was coerced, and we do not find that Supreme Court abused its discretion in declining to conduct a further evidentiary hearing following defendant's statement at sentencing (see People v. Fiumefreddo, 82 N.Y.2d at 547–548, 605 N.Y.S.2d 671, 626 N.E.2d 646).
Defendant contends, and the People concede, that defense counsel improperly took a position adverse to defendant's motion to withdraw his plea. “[A] defendant has a right to the effective assistance of counsel on his or her motion to withdraw a guilty plea” (People v. Mitchell, 21 N.Y.3d 964, 966, 970 N.Y.S.2d 919, 993 N.E.2d 405 ; accord People v. Faulkner, 168 A.D.3d 1317, 1318, 92 N.Y.S.3d 753 ). “If counsel takes a position that is adverse to his or her client, a conflict of interest arises and the trial court must assign new counsel to represent the defendant on the motion” (People v. Faulkner, 168 A.D.3d at 1319, 92 N.Y.S.3d 753 [citations omitted]; see People v. Thaxton, 191 A.D.3d 1166, 1167–1168, 142 N.Y.S.3d 245 , lv denied 37 N.Y.3d 960, 147 N.Y.S.3d 541, 170 N.E.3d 415 ). “[C]ounsel takes a position adverse to his [or her] client when stating that the defendant's motion lacks merit” (People v. Washington, 25 N.Y.3d 1091, 1095, 13 N.Y.S.3d 343, 34 N.E.3d 853 ; see People v. McCray, 106 A.D.3d 1374, 1375, 966 N.Y.S.2d 271 ). Here, before the motion was decided, defense counsel stated on the record that he did not believe there was a factual or legal basis for defendant's motion. At that point, Supreme Court should have assigned a new attorney to represent defendant on the motion to withdraw the plea (see People v. Oliver, 158 A.D.3d 990, 991, 71 N.Y.S.3d 692 ; People v. Prater, 127 A.D.3d 1249, 1250, 4 N.Y.S.3d 553 ; People v. McCray, 106 A.D.3d at 1375, 966 N.Y.S.2d 271). Accordingly, we vacate the sentence and remit for Supreme Court to make such an assignment and reconsider defendant's motion.
Next, defendant contends that Supreme Court erred in denying his CPL article 440 motion without a hearing on the ground of ineffective assistance of counsel. “To establish a claim of ineffective assistance of counsel, a defendant is required to demonstrate that he or she was not provided meaningful representation and that there is an absence of strategic or other legitimate explanations for counsel's allegedly deficient conduct” (People v. Porter, 184 A.D.3d 1014, 1018, 125 N.Y.S.3d 776  [internal quotation marks and citations omitted], lv denied 35 N.Y.3d 1069, 129 N.Y.S.3d 383, 152 N.E.3d 1185 ; see People v. Bowen, 185 A.D.3d 1219, 1221, 127 N.Y.S.3d 210 ). “In the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt upon the apparent effectiveness of counsel” (People v. Pace, 192 A.D.3d 1274, 1275, 142 N.Y.S.3d 678  [internal quotation marks and citations omitted], lv denied 37 N.Y.3d 973, 150 N.Y.S.3d 706, 172 N.E.3d 819 ; accord People v. LaPierre, 195 A.D.3d 1301, 1306, 150 N.Y.S.3d 810 ).
Defendant contended in his motion that he was denied the effective assistance of counsel as his attorney failed to inform Supreme Court that the People had not turned over all Brady materials. It appears from defendant's submissions that the investigation against him involved the FBI working in concert with the State Police, and the People allegedly failed to provide FBI materials in response to defense counsel's Brady request. However, it is possible that the failure to pursue the materials was a legitimate strategic choice, as that effort may have extended litigation past the point at which the People were willing to offer the plea agreement. Thus, defendant has not demonstrated that defense counsel's failure to pursue these Brady materials was ineffective assistance, particularly in light of the highly advantageous plea agreement that was secured (see CPL 440.30[b]; People v. Griffin, 165 A.D.3d 1316, 1318, 84 N.Y.S.3d 601 ; People v. MacDuff, 83 A.D.3d 1292, 1293, 920 N.Y.S.2d 750 ). Defendant's further arguments relative to ineffective assistance of counsel are without merit.
Defendant has abandoned his arguments related to other grounds raised in his CPL 440.10 motion, as he has not addressed them in his brief (see People v. Bethune, 80 A.D.3d 1075, 1076 n. 1, 915 N.Y.S.2d 419 , lv denied 17 N.Y.3d 792, 929 N.Y.S.2d 100, 952 N.E.2d 1095 ; People v. Hoffler, 74 A.D.3d 1632, 1633 n. 2, 906 N.Y.S.2d 115 , lv denied 17 N.Y.3d 859, 932 N.Y.S.2d 25, 956 N.E.2d 806 ).
ORDERED the judgment is modified, on the law, by vacating the sentence imposed; matter remitted to the Supreme Court for the assignment of new counsel and reconsideration of defendant's motion to withdraw his plea; and, as so modified, affirmed.
ORDERED that the order is affirmed.
Egan Jr., Aarons, Reynolds Fitzgerald and Colangelo, JJ., concur.
Response sent, thank you
Docket No: 109661, 112148
Decided: December 02, 2021
Court: Supreme Court, Appellate Division, Third Department, New York.
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