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People v. Carbone

Supreme Court of New York, Third Department

December 13, 2012

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
RICHARD M. CARBONE, Appellant.

Calendar Date: October 16, 2012.

Neroni Law Office, Delhi (Tatiana Neroni of counsel), for appellant.

Richard D. Northrup Jr., Delhi (John L. Hubbard of counsel), for respondent.

Before: Mercure, J.P., Rose, Lahtinen, McCarthy and Egan Jr., JJ.

MEMORANDUM AND ORDER

Egan Jr., J.

Appeal from a judgment of the County Court of Delaware County (Becker, J.), rendered March 16, 2009, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the second degree.

In June 2008, while returning from a weekend visit to New York City, defendant and his girlfriend were stopped for speeding in the Town of Deposit, Delaware County. Upon approaching defendant's pickup truck, a trooper detected a strong odor of marihuana; when questioned, defendant's girlfriend, who was driving, admitted that marihuana was present in the vehicle. A subsequent search of that vehicle yielded approximately one pound of marihuana and approximately eight ounces of cocaine, which defendant, in turn, admitted he had purchased while in New York City. As a result, defendant was indicted and charged with criminal possession of a controlled substance in the first degree and criminal possession of marihuana in the second degree.

In full satisfaction of the foregoing indictment, defendant subsequently pleaded guilty to criminal possession of a controlled substance in the second degree, waived his right to appeal and agreed to, among other things, forfeiture of the vehicle and the cash contained therein. Prior to sentencing, defendant moved to withdraw his plea, contending that his plea was coerced and that he was denied the effective assistance of counsel. After hearing oral argument, County Court denied defendant's motion and sentenced him to the agreed-upon term of five years in prison followed by five years of postrelease supervision. Defendant now appeals.

We affirm. As a starting point, our review of the record reveals that defendant's waiver of the right to appeal was knowing, intelligent and voluntary. County Court explained the significance of the appeal waiver to defendant, and defendant confirmed his understanding thereof (see People v Santana, 95 A.D.3d 1503, 1503 [2012]) and executed a written waiver of the right to appeal (see People v Tolliver, 92 A.D.3d 1024, 1024 [2012]; People v Moreno, 86 A.D.3d 863, 864 [2011], lv denied 17 N.Y.3d 954 [2011]). Although defendant now claims that his visual impairment calls into question the validity of his written waiver, the record reflects that County Court went to great lengths to orally explain the nature and consequences of the waiver to him. Accordingly, defendant's valid waiver of appeal precludes his present claim of judicial bias (see People v Irvis, 90 A.D.3d 1302, 1303 [2011], lv denied 19 N.Y.3d 962 [2012], citing People v White, 81 A.D.3d 1039, 1039 [2011]), as well as his challenge to the consensual forfeiture of the vehicle used to transport the drugs and the cash contained therein (see People v Sczepankowski, 293 A.D.2d 212, 214-215 [2002], lv denied 99 N.Y.2d 564 [2002]; see generally People v Abruzzese, 30 A.D.3d 219, 220 [2006], lv denied 7 N.Y.3d 784 [2006]).

Turning to the merits, defendant's challenge to the voluntariness of his plea survives his waiver of appeal and, further, has been preserved for our review in light of his subsequent motion to withdraw (see People v Ortiz, 69 A.D.3d 966, 967 [2010]); nonetheless, we find his various arguments on this point to be lacking in merit. The record reflects that defendant was advised of the charges against him and the rights he would be forfeiting, professed his understanding thereof, indicated that he had been afforded sufficient time to confer with counsel and was satisfied with counsel's services, denied being under the influence of any substances that would impair his thinking and stated that he was entering into the plea of his own free will. Under these circumstances, we find that defendant's guilty plea was knowing, intelligent and voluntary (see People v White, 85 A.D.3d 1493, 1493-1494 [2011]; People v Shurock, 83 A.D.3d 1342, 1343 [2011]; People v First, 62 A.D.3d 1043, 1044 [2009], lv denied 12 N.Y.3d 915 [2009]; People v Morrishaw, 56 A.D.3d 895, 896 [2008], lv denied 12 N.Y.3d 761 [2009]), and our conclusion in this regard is in no way undermined by defendant's baseless assertions that his plea was coerced and that he did not understand the nature of the proceedings [1]. Further, in light of the extensive oral plea colloquy, we find no merit to defendant's claim that County Court failed to accommodate his visual impairment or that such impairment implicated the voluntariness of his plea. Finally, County Court misspoke when it accepted defendant's plea — stating that defendant was pleading guilty to criminal sale of a controlled substance in the second degree instead of criminal possession of a controlled substance in the second degree. It is clear from a review of the underlying colloquy, however, that "defendant pleaded guilty to the appropriate crime and was sentenced accordingly" (People v Martinez, 243 A.D.2d 923, 925 [1997]).

Defendant's claim that County Court abused its discretion in denying his motion to withdraw his plea without a hearing is equally unavailing. "The decision to permit withdrawal of a guilty plea is a matter within the trial court's sound discretion, and a hearing is required only where the record presents a genuine question of fact as to its voluntariness" (People v Shurock, 83 A.D.3d at 1343 [internal quotation marks and citations omitted]; accord People v Moreno, 86 A.D.3d at 864; see People v Copeman, 77 A.D.3d 1187, 1188 [2010]).

Here, defendant's motion primarily centered around a claim of ineffective assistance of counsel — an argument that survives defendant's valid appeal waiver only to the extent that it impacts upon the voluntariness of his plea (see People v Speranza, 96 A.D.3d 1164, 1165 [2012]; People v Jimenez, 96 A.D.3d 1109, 1110 [2012]). To the extent that defendant asserts that his various attorneys pressured him to plead guilty and failed to properly investigate his case, demand certain hearings and review and/or request an updated presentence investigation report, such issues involve matters outside the record and, accordingly, are more properly entertained in the context of a CPL article 440 motion (see People v Wilson, 92 A.D.3d 981, 981-982 [2012], lv denied 19 N.Y.3d 981 [2012]). Moreover, plea counsel negotiated a very advantageous plea agreement and succeeded in securing a sentencing commitment that was far less than the maximum, and defendant acknowledged that he had conferred with counsel prior to entering his plea and, more to the point, was satisfied with counsel's services. Under these circumstances, we conclude that defendant was afforded meaningful representation during the course of his plea (see People v Moreno, 86 A.D.3d at 865; People v Shurock, 83 A.D.3d at 1344; People v Singletary, 51 A.D.3d 1334, 1335 [2008], lv denied 11 N.Y.3d 741 [2008]; see also People v Ildefonso, 89 A.D.3d 1327, 1327-1328 [2011]). Accordingly, defendant's motion to withdraw was properly denied.

As to the balance of defendant's ineffective assistance of counsel claim, it is well settled that the failure to make a particular pretrial motion or request a particular pretrial hearing does not necessarily constitute ineffective assistance of counsel per se (see People v Bailey, 80 A.D.3d 999, 1000 [2011], lv denied 18 N.Y.3d 856 [2011]; People v Gentry, 73 A.D.3d 1383, 1384 [2010]) and, based upon our review of the record as a whole, we are satisfied that defendant's various attorneys provided meaningful representation. Defendant's remaining contentions, including his assertion that the legal standard employed in reviewing a motion to withdraw a guilty plea is unconstitutional, have been examined and found to be lacking in merit.

Mercure, J.P., Rose, Lahtinen and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed.


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