People v. Forest

  CLARK, J.

Pamela B. Bleiwas, Ithaca, for appellant.

Gwen Wilkinson, District Attorney, Ithaca (Eliza Filipowski of counsel), for respondent.

Before: LAHTINEN, J.P., ROSE, LYNCH, CLARK and AARONS, JJ.

Appeals (1) from a judgment of the County Court of Tompkins County (Cassidy, J.), rendered October 29, 2014, convicting defendant upon his plea of guilty of the crime of forgery in the second degree, and (2) by permission, from an order of said court, entered May 12, 2015, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

In satisfaction of a five-count indictment stemming from defendant's use of a stolen credit card to make unauthorized purchases at two convenience stores, defendant pleaded guilty to the crime of forgery in the second degree, admitting that he signed the cardholder's name without permission. The plea agreement provided that defendant would successfully complete drug treatment and then enter the Judicial Diversion Program (hereinafter JDP) (see CPL 216.05 ) and that, upon his successful completion of the JDP, he could withdraw his guilty plea and enter a plea to a misdemeanor. The agreement contemplated that if defendant failed to abide by the conditions of the JDP, he could be sentenced, as a second felony offender, to a prison term up to 3½ to 7 years. Pursuant to the agreement, defendant signed a plea memorandum outlining those plea terms, admitted his predicate felony and agreed to waive his right to appeal. He successfully completed substance abuse treatment, was accepted into the JDP and signed a JDP contract. In September 2014, defendant admitted that he had absconded from the drug court program and violated the JDP contract conditions by failing to report to drug court and by using drugs. County Court terminated him from the JDP and imposed a prison sentence of 3 to 6 years. Defendant's subsequent motion pursuant to CPL 440.10 to vacate the judgment was denied. Defendant now appeals from the judgment and, with permission, from the order denying his motion to vacate.

Defendant's contention that his guilty plea was not knowing and voluntary, which survives the unchallenged appeal waiver (see People v. Moulton, 134 A.D.3d 1251, 1252, 19 N.Y.S.3d 912 [2015] ), was not preserved for our review by an appropriate postallocution motion pursuant to CPL 220.60(3), despite ample opportunity to do so within the many months between his guilty plea and sentencing (see People v. Labaff, 127 A.D.3d 1471, 1471, 7 N.Y.S.3d 682 [2015], lv. denied 26 N.Y.3d 931, 17 N.Y.S.3d 94, 38 N.E.3d 840 [2015] ; People v. Disotell, 123 A.D.3d 1230, 1231, 999 N.Y.S.2d 240 [2014], lv. denied 25 N.Y.3d 1162, 15 N.Y.S.3d 294, 36 N.E.3d 97 [2015] ; see also People v. Conceicao, 26 N.Y.3d 375, 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ; People v. Tyrell, 22 N.Y.3d 359, 363–364, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013] ; People v. Peque, 22 N.Y.3d 168, 182, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013] ). A review of the plea allocution discloses that defendant did not say anything that raised significant doubt as to his guilt or called into question the voluntariness of his guilty plea so as to bring this case within the narrow exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Disotell, 123 A.D.3d at 1231, 999 N.Y.S.2d 240 ; see also People v. Williams, 27 N.Y.3d 212, 220, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ).

Next, defendant's motion to vacate the judgment was premised upon the claim that, as relevant here, his guilty plea was not knowing and voluntary as a result of ineffective assistance of counsel, in that counsel failed to disclose to him (or the prosecutor) that a witness had signed an exculpatory affidavit prior to his guilty People v. Soprano, 135 A.D.3d 1243, 1243, 23 N.Y.S.3d 592 [2016], lv. denied 27 N.Y.3d 1007, ––– N.Y.S.3d ––––, ––– N.E. 3d –––– [2016] ; People v. Gonzalez, 130 A.D.3d 1089, 1090, 12 N.Y.S.3d 382 [2015] ). Accordingly, County Court properly denied defendant's motion to vacate premised upon CPL 440.10(1)(h).

ORDERED that the judgment and order are affirmed.

LAHTINEN, J.P., ROSE, LYNCH and AARONS, JJ., concur.