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The PEOPLE of the State of New York, Respondent, v. Saury MINAYA, Appellant.
MEMORANDUM AND ORDER
Appeals (1) from a judgment of the County Court of Columbia County (Nichols, J.), rendered January 17, 2019, convicting defendant upon his plea of guilty of the crime of rape in the second degree, and (2) by permission, from two orders of said court, entered June 15, 2020 and September 4, 2020, which, among other things, denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
In July 2018, defendant was arraigned on a felony complaint charging him with one count of rape in the first degree by forcible compulsion. Defendant subsequently executed a waiver of indictment, consented to prosecution by superior court information and entered a plea of guilty to rape in the second degree based on the victim being mentally incapacitated. As part of defendant's plea, he was required to execute a waiver of his right to appeal, although retaining his right to appeal the sentence imposed. Prior to sentencing, defendant unsuccessfully moved to withdraw his plea on the ground that he was denied the effective assistance of counsel. Defendant was then sentenced to a prison term of five years to be followed by seven years of postrelease supervision.
Thereafter, defendant moved to vacate the judgment of conviction pursuant to CPL 440.10, asserting, insofar as is relevant here, that he was denied the effective assistance of counsel because the victim impact statement contradicted the facts to which defendant pleaded during the factual allocution. Defendant also sought a judicial subpoena compelling production of all of the victim's statements. The People opposed the requested relief, and County Court denied defendant's motion, without a hearing, in two separate orders. Defendant appeals from the judgment of conviction and, by permission, from County Court's orders denying his CPL article 440 motion.
We affirm. Defendant contends that the waiver of indictment is jurisdictionally defective because it does not specify the time and date of the charged offense as required by CPL 195.20. However, the omission of nonelemental information, to which defendant did not object, does not render the waiver of indictment jurisdictionally defective and, therefore, any such challenge was forfeited by his guilty plea (see People v. Lang, 34 N.Y.3d 545, 568–569, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Feltz, 190 A.D.3d 1026, 1026, 139 N.Y.S.3d 699 ; People v. Moses, 184 A.D.3d 910, 911, 123 N.Y.S.3d 551 , lv denied 35 N.Y.3d 1096, 131 N.Y.S.3d 308, 155 N.E.3d 801 ). Additionally, “defendant [made] no claim that he lacked notice of the specific crime for which he waived prosecution by indictment” (People v. Feltz, 190 A.D.3d at 1026, 139 N.Y.S.3d 699; see People v. Lang, 34 N.Y.3d at 569, 122 N.Y.S.3d 226, 144 N.E.3d 970).
Defendant next argues that his plea to rape in the second degree based on the victim's mental incapacitation is not a lesser included offense of rape in the first degree by forcible compulsion and, therefore, County Court erred in accepting such plea. However, defendant did not raise this specific argument as part of his motion to withdraw his guilty plea or in the CPL 440.10 motion and it is therefore unpreserved (see People v. Phillip, 200 A.D.3d 1108, 1108, 157 N.Y.S.3d 312 ; People v. Williams, 189 A.D.3d 1978, 1980, 138 N.Y.S.3d 690 , lv denied 37 N.Y.3d 1165, 160 N.Y.S.3d 686, 181 N.E.3d 1114 ). Were we to address his claim despite the lack of preservation, we would find defendant's plea to the lesser offense nevertheless valid (see People v. Johnson, 23 N.Y.3d 973, 974–975, 989 N.Y.S.2d 680, 12 N.E.3d 1109 ; see also CPL 220.10[d][ii]; People v. Ford, 62 N.Y.2d 275, 283, 476 N.Y.S.2d 783, 465 N.E.2d 322 ; People v. Johnson, 217 A.D.2d 133, 136–137, 636 N.Y.S.2d 282 , affd 89 N.Y.2d 905, 653 N.Y.S.2d 265, 675 N.E.2d 1217 ).1
Defendant also contends that the sentence imposed was harsh and excessive in light of the facts of this case, his lack of any criminal record and his personal characteristics as presented in a mitigation report. We disagree. County Court considered the presentence investigation report, the victim impact statement and the mitigation report submitted by defendant, and imposed a term of imprisonment and period of postrelease supervision that were toward the middle of the sentencing ranges for each (see Penal Law §§ 70.02[c]; 70.45[2–a][d]). Our review of the record does not reflect that the sentence “was unduly harsh or severe” so as to warrant a reduction in the interest of justice (CPL 470.15[b]).
Defendant argues that County Court's denial of his request for a judicial subpoena of the victim's statements was in error as the facts alleged in the victim impact statement were inconsistent with the crime for which he was charged and, therefore, any similar statements made prior to defendant's plea would have constituted Brady material. This argument is not properly before us because defendant's CPL article 440 motion did not raise his current argument in support of the request for a judicial subpoena (see People v. Stanley, 189 A.D.3d 1818, 1819, 136 N.Y.S.3d 569 ; see generally People v. Bastian, 83 A.D.3d 1468, 1470, 919 N.Y.S.2d 724 , lv denied 17 N.Y.3d 813, 929 N.Y.S.2d 801, 954 N.E.2d 92 ; cf. People v. Nusbaum, 222 A.D.2d 723, 724, 634 N.Y.S.2d 852 , lv denied 87 N.Y.2d 1023, 644 N.Y.S.2d 156, 666 N.E.2d 1070 ). To the extent that defendant argues that the court improperly denied his request for a judicial subpoena, that process may not be used to circumvent discovery rules pursuant to the Criminal Procedure Law (see Matter of Terry D., 81 N.Y.2d 1042, 1044, 601 N.Y.S.2d 452, 619 N.E.2d 389 ; People v. Gissendanner, 48 N.Y.2d 543, 551, 423 N.Y.S.2d 893, 399 N.E.2d 924 ).2
Defendant also argues that he was denied the effective assistance of counsel and, therefore, County Court erred in denying his motion to withdraw his guilty plea and his CPL 440.10 motion, both of which raised this claim. Since “these contentions raise both record-based and nonrecord-based allegations of ineffectiveness, they will be addressed together in their entirety in the context of defendant's appeal from the denial of his CPL 440.10 motion” (People v. White–Span, 182 A.D.3d 909, 914, 122 N.Y.S.3d 818 , lv denied 35 N.Y.3d 1071, 129 N.Y.S.3d 381, 152 N.E.3d 1183 ). As relevant here, “[i]n 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. Johnson, 201 A.D.3d 1208, 1208, 159 N.Y.S.3d 779  [internal quotation marks, brackets and citation omitted]). Here, the felony complaint charged defendant with rape in the first degree, a class B violent felony, which is punishable by a term of imprisonment between 5 and 25 years (see Penal Law § 70.02[a]). Defense counsel secured a favorable plea deal that required defendant to enter a guilty plea to a class D violent felony, punishable by a term of imprisonment between two and seven years (see Penal Law § 70.02[c]). The plea colloquy reveals that County Court reviewed the terms of the plea agreement on the record and defendant indicated that he was satisfied with counsel's advice, had adequate time to confer with counsel regarding his rights and desired to resolve this matter “fast” – even requesting a sentencing commitment the day after he was charged. Based on this and our review of the record, which does not reveal any evidence of innocence, fraud or mistake (see People v. Buchanan, 202 A.D.3d 1166, 1167, 160 N.Y.S.3d 494 , lv denied 38 N.Y.3d 1007, 168 N.Y.S.3d 366, 188 N.E.3d 558 [Apr. 19, 2022]; People v. Hewitt, 201 A.D.3d 1041, 1045, 159 N.Y.S.3d 578 , lv denied 38 N.Y.3d 928, 164 N.Y.S.3d 28, 184 N.E.3d 849 ), “we are satisfied that defendant received meaningful representation such that County Court did not abuse its discretion in denying [defendant's] motion without a hearing” (People v. Simpson, 196 A.D.3d 996, 998, 150 N.Y.S.3d 833 , lv denied 37 N.Y.3d 1029, 153 N.Y.S.3d 409, 175 N.E.3d 434 ; see People v. Johnson, 194 A.D.3d 1267, 1269, 147 N.Y.S.3d 258 ). Defendant's remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit.
ORDERED that the judgment and orders are affirmed.
1. At oral argument, defendant focused his argument on the fact that his plea was not to a lesser included offense of the crime charged, but this is without merit because “the plea offered by the People and accepted by defendant was freely taken as part of a bargain, [and therefore] it is not rendered invalid because of an alleged inconsistency with the crime charged or the fact that defendant did not plead guilty to a crime charged in the indictment or to any lesser included offense” (People v. Johnson, 217 A.D.2d at 137, 636 N.Y.S.2d 282 [internal citations omitted]).
2. CPL article 245 was not in existence at the time of defendant's plea and, thus, the People were not obligated to disclose certain information prior to defendant's plea pursuant thereto.
Egan Jr., J.P., Colangelo and Ceresia, JJ., concur.
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Docket No: 111498, 112645
Decided: June 09, 2022
Court: Supreme Court, Appellate Division, Third Department, New York.
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