People v. MalloyPeople v. Malloy
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 Delawarе 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 matеrial stage of a trial, including ancillary matters such as questioning prospective jurors at sidebar regarding bias, hostility or predisposition” (People v Abdullah, 28 AD3d 940, 941 [2006], lvs denied 7 NY3d 784 [2006]; see People v Antommarchi, 80 NY2d 247, 250 [1992]). It is equally clear, however, that such right may “be voluntarily waived by a defendant оr the defendant‘s attorney” (People v Abdullah, 28 AD3d at 941; see People v Burch, 97 AD3d 987, 989 [2012], lv denied 19 NY3d 1101 [2012]; People v Jackson, 52 AD3d 1052, 1053 [2008], lv denied 11 NY3d 789 [2008]). Notably, a defend
Defendant‘s claim of ineffеctive 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 communicаtion, 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 “nоt 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 NY3d 990, 992 [2016] [internal quotation marks, brackets and citation omitted]; see People v Kalina, 149 AD3d 1264, 1267 [2017]).
Finally, we find no merit to defendant‘s claim that the sеntence 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 circumstancеs exist warranting a modification” (People v Ramos, 133 AD3d 904, 908 [2015] [internal quotation marks and citations omitted], lv denied 26 NY3d 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 defendаnt was punished for asserting his right to trial” (People v Peart, 141 AD3d 939, 942 [2016] [internal quotation marks and citations omitted], lv denied 28 NY3d 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 аs 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
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 еxistence 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 prоmises have been made to induce [the] guilty plea” (Matter of Benjamin S., 55 NY2d 116, 120 [1982]; see People v Crowell, 130 AD3d 1362, 1363 [2015], lv denied 26 NY3d 1144 [2016], cert denied 580 US —, 137 S Ct 1333 [2017]; People v Huertas, 203 AD2d 952, 953 [1994], affd 85 NY2d 898 [1995]). Indeed, “once the terms of a plea bargaining agreement are placed on the record, judicial recognition of additional promises оr terms . . . will not be forthcoming except in a rare case. Any other rule would serve only to undermine the goal of eliminating the secretiveness that has at times tended to surround the plea bargaining process” (Matter of Benjamin S., 55 NY2d at 121).
Here, the record reflects that, on February 4, 2014, defendant was offered the opportunity to plead guilty to attempted criminal possession of a weapon in the second degree in exchange for a determinate sentence of no less than three years and no more than seven years—followed by five years of postrelease supervision—and a waiver of his right to appeal. Defendant unequivocally rejected that offer. Prior to the start of the suppression hearing on June 14, 2014, defense counsel advised the court that the People had once again extended that offer and, although stopping short of approving such offer, Supreme Court indicated its willingness to revisit the issue if defendant was interested in resolving the matter via a plea. Following a discussion regarding defendant‘s potential sentencing exposure, as well as his potential status as a persistent felony offender, defendant again rejected the offer—stating that he was only interested in accepting “the offer that they already presented“—an apparent reference to the off-the-record offer allegedly made shortly after he was arrested. The People subsequently extended one final plea offer on the morning оf trial, which defendant again rejected.
Simply put, the alleged off-the-record misdemeanor plea deal that defendant now seeks to enforce is flatly contradicted by the on-the-record plea offers extended in February 2014 and on the morning of trial. Additionally, nothing in the record reflects
McCarthy, J.P., Garry, Devine and Clark, JJ., concur. Ordered that the judgment and order are affirmed.