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The PEOPLE of the State of New York, Respondent, v. Jonathan PODESWA, Appellant.
MEMORANDUM AND ORDER
Appeals (1) from a judgment of the Supreme Court (McDonough, J.), rendered August 31, 2018 in Albany County, convicting defendant upon his plea of guilty of the crime of rape in the first degree, and (2) by permission, from an order of said court, entered August 28, 2020 in Albany County, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
In May 2018, defendant was charged by indictment with one count of predatory sexual assault against a child stemming from allegations that, on multiple occasions, he engaged in acts of sexual conduct with a minor (hereinafter the victim). He subsequently accepted a plea agreement, pursuant to which he pleaded guilty to the reduced charge of rape in the first degree and, as part of the agreement, defendant was also required to waive his right to appeal. In accordance with the plea agreement, Supreme Court ultimately sentenced him, as a second felony offender, to a prison term of 12 years followed by 25 years of postrelease supervision, which would run consecutively to a separate sentence for a parole violation connected to an unrelated crime. Defendant then moved to vacate the judgment of conviction pursuant to CPL 440.10 on ineffective assistance grounds based upon counsel's failure to seek suppression of the search of his cell phone and to investigate an alleged recantation by the victim. Following the People's response in opposition, Supreme Court denied the motion without a hearing, finding the challenge to be wholly record-based and otherwise unsupported by sufficient information. Defendant appeals from the judgment of conviction and, by permission, from the denial of his CPL article 440 motion.
Initially, we agree with defendant that the appeal waiver is overbroad and, thus, his waiver of the right to appeal was not knowing, voluntary and intelligent and is therefore unenforceable. We have found this exact written waiver, which was utilized by the Albany County District Attorney's office, to be overly broad (see People v. Stratton, 201 A.D.3d 1201, 1202, 159 N.Y.S.3d 763 ; People v. Robinson, 195 A.D.3d 1235, 1236, 145 N.Y.S.3d 864 ). Supreme Court's oral colloquy did not cure its defects (see People v. Anthony, 201 A.D.3d 1028, 1029, 160 N.Y.S.3d 448 ; People v. Winters, 196 A.D.3d 847, 848, 151 N.Y.S.3d 263 , lvs denied 37 N.Y.3d 1025, 1030, 153 N.Y.S.3d 413, 175 N.E.3d 438, 439 ).
Next, defendant seeks to vacate his plea on the ground that it was not knowing, intelligent and voluntary because Supreme Court failed to advise him of all of his Boykin rights. Insofar as defendant did not file a postallocution motion to withdraw the plea despite an opportunity to do so, this issue is unpreserved for review (see People v. Miller, 190 A.D.3d 1029, 1030, 138 N.Y.S.3d 715 ; People v. Apelles, 185 A.D.3d 1298, 1299, 127 N.Y.S.3d 652 , lv denied 35 N.Y.3d 1092, 131 N.Y.S.3d 287, 155 N.E.3d 780 ). The narrow exception to the preservation rule does not apply since defendant did not make any statements during the plea colloquy that were “inconsistent with his guilt, negated an essential element of the charged crime or otherwise called into question the voluntariness of his plea” (People v. Gamble, 190 A.D.3d 1022, 1024, 138 N.Y.S.3d 729 , lvs denied 36 N.Y.3d 1095, 1097, 1098, 144 N.Y.S.3d 134, 154, 155, 156, 167 N.E.3d 1269, 1289, 1290, 1291 ; see People v. Guerrero, 194 A.D.3d 1258, 1260, 147 N.Y.S.3d 264 , lv denied 37 N.Y.3d 992, 152 N.Y.S.3d 412, 174 N.E.3d 352 ). Recognizing that his argument may be unpreserved, defendant asks us to take corrective action in the interest of justice. We decline to do so. As for defendant's further request, that this Court reduce his agreed-upon sentence in the interest of justice, we find no abuse of discretion or extraordinary circumstances that would warrant such a reduction (see People v. Lenahan, 201 A.D.3d 1255, 1256, 158 N.Y.S.3d 640 ; People v. Harris, 201 A.D.3d 1030, 1031, 156 N.Y.S.3d 766 , lvs denied 38 N.Y.3d 950, 952, 954, 165 N.Y.S.3d 469, 470, 482, 185 N.E.3d 990, 991, 1003 ).
Turning now to defendant's CPL 440.10 motion, “[o]n 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. Marte–Feliz, 192 A.D.3d 1397, 1397–1398, 144 N.Y.S.3d 255  [internal quotation marks, brackets and citations omitted]; see CPL 440.30; People v. Beverly, 196 A.D.3d 864, 865, 151 N.Y.S.3d 247 , lv denied 37 N.Y.3d 1058, 154 N.Y.S.3d 628, 176 N.E.3d 664 ).
Initially, inasmuch as defendant's arguments of ineffective assistance of counsel involve both record and nonrecord-based claims, Supreme Court erred in failing to address these claims in their entirety as part of a review of counsel's overall performance in the context of the CPL article 440 motion (see People v. Drayton, 189 A.D.3d 1888, 1891–1892, 138 N.Y.S.3d 275 , lv denied 36 N.Y.3d 1119, 146 N.Y.S.3d 216, 169 N.E.3d 574 ; People v. Taylor, 156 A.D.3d 86, 91–92, 64 N.Y.S.3d 714 , lv denied 30 N.Y.3d 1120, 77 N.Y.S.3d 345, 101 N.E.3d 986 ). Nevertheless, defendant's ineffective assistance claims are without merit. To that end, one alleged failure that defendant points to is that counsel did not move to suppress the search of defendant's cell phone by defendant's parole officer. However, in his motion, “defendant failed to demonstrate the absence of any strategic or other legitimate explanation for ․ counsel's failure to seek suppression, which is necessary to rebut the presumption that counsel acted in a competent manner and exercised professional judgment in not seeking suppression” (People v. Vecchio, 228 A.D.2d 820, 821, 644 N.Y.S.2d 352 ; see People v. Stahl, 141 A.D.3d 962, 966, 35 N.Y.S.3d 779 , lv denied 28 N.Y.3d 1127, 51 N.Y.S.3d 23, 73 N.E.3d 363 , cert denied ––– U.S. ––––, 138 S. Ct. 222, 199 L.Ed.2d 120 ). Indeed, counsel may have concluded that such a motion was futile, as the challenged search and seizure could have been justified under the parole officer's duty “to detect and to prevent parole violations” given that, as the People indicated, defendant was under investigation for allegations of unwanted sexual conduct at the time of the search and seizure (People v. Huntley, 43 N.Y.2d 175, 181, 401 N.Y.S.2d 31, 371 N.E.2d 794 ; see People v. Johnson, 49 A.D.3d 1244, 1245, 854 N.Y.S.2d 609 , lv denied 10 N.Y.3d 865, 860 N.Y.S.2d 491, 890 N.E.2d 254 ).
Defendant also contends that counsel was ineffective for failing to investigate an alleged recantation by the victim. In support of his motion, however, which is based upon information outside the record, defendant did not proffer any sworn allegations substantiating his claim and, instead, proffered only his own affidavit, which merely “recit[es] the chronology of his case” (People v. Kennedy, 46 A.D.3d 1099, 1101, 847 N.Y.S.2d 736 , lv denied 10 N.Y.3d 841, 859 N.Y.S.2d 400, 889 N.E.2d 87 ; see CPL 440.30[b]; compare People v. Stetin, 192 A.D.3d 1331, 1332–1334, 143 N.Y.S.3d 460 ). In any event, we cannot say that the failure to investigate the alleged recantation constitutes the ineffective assistance of counsel, given that “recantation evidence is inherently unreliable” (People v. Beaver, 150 A.D.3d 1325, 1325–1326, 54 N.Y.S.3d 712  [internal quotation marks, brackets, ellipsis and citations omitted]; see People v. Lane, 100 A.D.3d 1540, 1541, 954 N.Y.S.2d 363 , lv denied 20 N.Y.3d 1063, 962 N.Y.S.2d 613, 985 N.E.2d 923 ) and the other significant evidence against defendant, including his own admissions to committing the offense (see People v. Kamp, 161 A.D.3d 1394, 1395, 77 N.Y.S.3d 572 , lv denied 31 N.Y.3d 1150, 83 N.Y.S.3d 431, 108 N.E.3d 505 ). Here, the record evinces that counsel secured a favorable plea deal that greatly minimized defendant's sentencing exposure. Notably, defendant attested during the plea colloquy that counsel had explained to him the People's evidence in this case as well as all possible defenses that he could present and further assented to being “highly satisfied with his representation.” In view of the foregoing, we do not discern an abuse of discretion in Supreme Court's denial of defendant's CPL article 440 motion without a hearing (see People v. Marte–Feliz, 192 A.D.3d at 1399, 144 N.Y.S.3d 255; People v. Kennedy, 46 A.D.3d at 1101, 847 N.Y.S.2d 736).
ORDERED that the judgment and order are affirmed.
Egan Jr., J.P., Clark, Ceresia and Fisher, JJ., concur.
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Docket No: 110607, 112577
Decided: May 12, 2022
Court: Supreme Court, Appellate Division, Third Department, New York.
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