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People v. Malloy

Supreme Court of New York, Third Department

July 20, 2017

LEVI C. MALLOY, Appellant.

          Calendar Date: June 9, 2017

          Jack H. Weiner, Chatham, for appellant, and appellant pro se.

          P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.

          Before: McCarthy, J.P., Garry, Egan Jr., Devine and Clark, JJ.


          Egan Jr., J.

         Appeals (1) from a judgment of the Supreme Court (Breslin, J.), rendered September 3, 2014 in Albany County, upon a verdict convicting defendant of the crime of criminal possession of a weapon in the second degree, and (2) by permission, from an order of said court, entered March 1, 2016 in Albany County, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

         During the early morning hours of October 25, 2013, a member of the City of Albany Police Department observed a vehicle operated by defendant make an illegal right-hand turn at a traffic light at the intersection of Morton Avenue and Delaware

         Avenue in the City of Albany. The officer initiated a traffic stop and, upon approaching the vehicle, detected the odor of marihuana and observed a couple of "burnt marihuana cigarettes in [the vehicle's] ashtray." A subsequent search of the vehicle revealed a.25 caliber handgun with a magazine containing six live rounds of ammunition. In January 2014, defendant was indicted and charged with one count of criminal possession of a weapon in the second degree. Following unsuccessful suppression motions, a jury trial ensued, at the conclusion of which defendant was convicted as charged. Defendant's motion to set aside the verdict was denied, as was his subsequent motion for renewal, and he was sentenced to a prison term of 15 years followed by five years of postrelease supervision. Defendant thereafter filed a CPL 440.10 motion seeking, among other things, specific performance of an alleged preindictment plea agreement. Supreme Court denied defendant's motion without a hearing, and these appeals ensued.

         Defendant initially contends that he was denied the right to be present at sidebar conferences. We disagree. There is no question that "[a] defendant has the right to be present at every material stage of a trial, including ancillary matters such as questioning prospective jurors at sidebar regarding bias, hostility or predisposition" (People v Abdullah, 28 A.D.3d 940, 941 [2006], lvs denied 7 N.Y.3d 784');">7 N.Y.3d 784 [2006]; see People v Antommarchi, 80 N.Y.2d 247, 250 [1992]). It is equally clear, however, that such right may "be voluntarily waived by a defendant or the defendant's attorney" (People v Abdullah, 28 A.D.3d at 941; see People v Burch, 97 A.D.3d 987, 989 [2012], lv denied 19 N.Y.3d 1101');">19 N.Y.3d 1101 [2012]; People v Jackson, 52 A.D.3d 1052, 1053 [2008], lv denied 11 N.Y.3d 789');">11 N.Y.3d 789 [2008]). Notably, a defendant's waiver in this regard may be either express or implied (see People v Flinn, 22 N.Y.3d 599, 601-602 [2014]; People v Williams, 15 N.Y.3d 739, 740 [2010]; People v Jackson, 52 A.D.3d at 1053). Here, the record reflects that when Supreme Court inquired as to whether defendant would be attending sidebar colloquies, defense counsel, after conferring with defendant, indicated that defendant wished to defer making a decision - stating, "We'll have an answer on the [first day of trial]." Jury selection then proceeded without any further discussion of defendant's attendance at sidebar conferences and, thereafter, defendant neither invoked his right to be present at such conferences nor objected to his absence therefrom. Under these circumstances, we find that defendant, by his conduct and in the absence of any corresponding objection in this regard, waived his right to be present at sidebar conferences (see People v Keen, 94 N.Y.2d 533, 539 [2000]; People v Jackson, 52 A.D.3d at 1053).

         Defendant's claim of ineffective assistance of counsel is equally unavailing. The record reflects that, following his arraignment, defendant was represented by three separate attorneys. After defendant expressed dissatisfaction with the Public Defender initially assigned to him - claiming that she had "sold [him] out" and indicating that he alone would dictate when "the f*** [she could] respond" to the court's inquiries - Supreme Court, citing an obvious breakdown in communication, indicated that it would assign the Alternate Public Defender's office to represent him. Representation by that office lasted approximately two months until defendant again claimed that counsel was "not working in [his] best interests." When defendant appeared for the Sandoval/Ventimiglia hearing with his third attorney, he informed Supreme Court that he "no longer want[ed] this man representing [him] because... he's not doing... his job as a lawyer" - a criticism that apparently stemmed from the fact that certain of defendant's suppression motions had proven to be unsuccessful. Defendant proceeded to trial with this particular attorney and now claims that counsel failed to provide him with meaningful representation.

         As the case law reflects, "[a] defendant receives effective assistance of counsel so long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation" (People v Speaks, 28 N.Y.3d 990, 992 [2016] [internal quotation marks, brackets and citation omitted]; see People v Kalina, 149 A.D.3d 1264, 1267 [2017]). Notably, "[t]he test is reasonable competence, not perfect representation" (People v Kalina, 149 A.D.3d at 1267 [internal quotation marks and citations omitted]). Here, trial counsel engaged in appropriate motion practice, articulated cogent opening and closing statements, fully cross-examined the People's witnesses, made appropriate requests to charge and, when there was a legal basis for doing so, raised appropriate evidentiary objections. Under these circumstances, we are satisfied that defendant received meaningful representation. Defendant's remaining arguments relative to the performance of the various attorneys who represented him in this matter amount to nothing more than a generalized dissatisfaction that certain rulings did not pan out in his favor, and it goes without saying that defense counsel, although obligated to zealously represent his or her client's interests, cannot be faulted for failing to achieve the defendant's desired outcome.

         Finally, we find no merit to defendant's claim that the sentence imposed was harsh and excessive. "A sentence that falls within the permissible statutory range will not be disturbed unless it can be shown that the sentencing court abused its discretion or extraordinary circumstances exist warranting a modification" (People v Ramos, 133 A.D.3d 904, 908 [2016] [internal quotation marks and citations omitted], lvs denied 26 N.Y.3d 1143, 1149 [2016]). Further, "[t]he mere fact that a sentence imposed after trial is greater than that offered in connection with plea negotiations is not proof positive that defendant was punished for asserting his right to trial" (People v Peart, 141 A.D.3d 939, 942 [2016] [internal quotation marks and citations omitted], lv denied 28 N.Y.3d 1074 [2016]). Given defendant's extensive criminal history, which included seven prior felony convictions, and his refusal to accept responsibility, we discern no basis upon which to disturb the sentence imposed. Defendant's assertion that Supreme Court displayed vindictiveness in imposing sentence is belied by the fact that the court, in an exercise of its discretion, elected to sentence defendant as a second felony offender instead of as a persistent felony offender (as requested by the People).

         Turning to the CPL 440.10 motion, defendant argues that he was denied specific performance of an alleged pretrial plea agreement purportedly negotiated with various members of the Albany Police Department and an Assistant District Attorney. According to defendant, in exchange for turning in additional firearms, he was told that he would be allowed to plead guilty to a misdemeanor and receive a one-year sentence. Supreme Court denied the motion without a hearing finding, among other things, that there was no record evidence of any such deal and, in any event, that defendant was not placed in a position of "no return" because the firearms allegedly relinquished upon his behalf did not form the basis for his conviction.

         The case law makes clear that "off-the-record promises made in the plea bargaining process will not be recognized where they are flatly contradicted by the record, either by the existence of some on-the-record promise whose terms are inconsistent with those later urged or by the placement on the record of a statement by the pleading defendant that no other promises have been made to induce [the] guilty plea" (Matter of Benjamin S., 55 N.Y.2d 116, 120 [1982]; see People v Crowell, 130 A.D.3d 1362, 1363 [2015], lv denied26 N.Y.3d 1144');">26 N.Y.3d 1144 [2016], cert denied ___ U.S. ___, 137 S.Ct. 1333');">137 S.Ct. 1333 [2017]; People v Huertas, 203 A.D.2d 952, 953 [1994], affd85 N.Y.2d 898');">85 N.Y.2d 898 [1995]). Indeed, "once the terms of a plea bargaining agreement are placed on the record, judicial recognition of additional promises or terms... will not be forthcoming except ...

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