Appeal from a judgment of the Steuben County Court (Joseph
W. Latham, J.), rendered July 31, 2013. The judgment convicted defendant, upon
his plea of guilty, of burglary in the second degree. It is hereby ORDERED that
the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a
judgment convicting him, upon an Alford plea, of burglary in the second degree (Penal
Law § 140.25 [2]). In appeal No. 2, he appeals from a judgment convicting him,
upon a plea of guilty, of tampering with a witness in the third degree (§
215.11 [2]). We reject defendant’s contention in appeal No. 1 that his claim of
actual innocence may be reviewed on direct appeal following his Alford plea. A
claim of actual innocence “must be based upon reliable evidence which was not
presented at the [time of the plea]” (People v Hamilton, 115 AD3d 12, 23), and
thus must be raised by a motion pursuant to CPL article 440 (see generally id.
at 26-27). Moreover, a plea of guilty “ ‘should not be permitted to be used as
a device for a defendant to avoid a trial while maintaining a claim of factual innocence’
” (People v Conway, 118 AD3d 1290, 1290, quoting People v Plunkett, 19 NY3d
400, 406), and we conclude that the same is true of an Alford plea (see
generally Matter of Silmon v Travis, 95 NY2d 470, 475). Even assuming,
arguendo, that defendant’s contention survived the plea, we conclude that
defendant has “failed to demonstrate [his] factual innocence” (People v
Caldavado, 26 NY3d 1034, 1037; see People v Larock, 139 AD3d 1241, 1244, lv denied
28 NY3d 932). Defendant had over $15,000 in cash on his person when he was arrested
on the charges in appeal No. 1. He contends that this money was unrelated to
the charged crimes, and that the People’s refusal to return it left him unable
to retain counsel and denied him his right to counsel of his choice (see
generally Luis v United States, ___ US ___, ___, 136 S Ct 1083, 1089; United
States v Gonzalez-Lopez, 548 US 140, 144). Although this contention survives
defendant’s plea (see People v Griffin, 20 NY3d 626, 630-632), we conclude that
it is encompassed by the waiver of the right to appeal set forth in the “settlement
agreement” signed by defendant in connection with the guilty plea. That
agreement provided that, for the purpose of resolving potential civil
forfeiture claims available to the District Attorney under CPLR article 13-A,
the cash was subject to forfeiture as the proceeds or instrumentality of a
crime (see CPLR 1311 [1]; see generally Morgenthau v Citisource, Inc., 68 NY2d
211, 217-218), and defendant “waive[d] any right of appeal he may have
regarding the forfeiture of the property.”
In any event, even assuming that the
waiver did not encompass defendant’s contention that he was denied his right to
counsel of his choice as the result of the People’s refusal to return the cash,
we conclude that his contention is unpreserved for our review (see People v
Kamp, 129 AD3d 1339, 1341, lv denied 26 NY3d 969; People v Sims, 105 AD3d 415,
416, lv denied 21 NY3d 1009; see generally People v Tineo, 64 NY2d 531,
535-536). While defendant repeatedly questioned why the money was not being
returned to him, he never made the specific argument that County Court should
order it returned to protect his right to counsel of his choice (see CPL 470.05
[2]), nor did he request a hearing to test the People’s assertion that the
money was related to the charged crimes (cf. Kaley v United States, ___ US ___,
___, 134 S Ct 1090, 1095). Defendant further contends in appeal No. 1 that the
court should have directed that the grand jury minutes be disclosed to him.
Even assuming, arguendo, that this contention survives his plea (cf. People
v Ippolito, 114 AD3d 703, 703), we conclude that he failed
to show the requisite “compelling and particularized need” for disclosure of
the minutes to overcome the statutory presumption of grand jury secrecy (People
v Robinson, 98 NY2d 755, 756; see People v Eun Sil Jang, 17 AD3d 693, 694; see
generally CPL 190.25 [4] [a]). His related constitutional claim is unpreserved
for our review (see People v Lane, 7 NY3d 888, 889), and it is without merit in
any event (see generally Robinson, 98 NY2d at 756-757). Defendant’s contention
in appeal No. 1 that the People violated their Brady obligation is forfeited by
his guilty plea and is in any event without merit (see People v Chinn, 104 AD3d
1167, 1168, lv denied 21 NY3d 1014). Defendant has not established that the
People had access to his text messages prior to his plea or that those messages
are exculpatory (see People v Hotaling, 135 AD3d 1171, 1173; see generally
People v Santorelli, 95 NY2d 412, 421-422), and his “ ‘speculation concerning
the existence of [allegedly exculpatory video evidence] is insufficient to
establish a . . . Brady violation’ ” (People v Bryant, 298 AD2d 845, 846, lv denied
99 NY2d 556; see People v Burton, 126 AD3d 1324, 1325-1326, lv denied 25 NY3d
1199; People v Johnson, 60 AD3d 1496, 1497, lv denied 12 NY3d 926).
We further conclude in appeal No. 1 that the court properly refused
to suppress evidence recovered from defendant’s vehicle without conducting a
hearing. It was apparent from information available to defendant at the time of
his request that the search of his vehicle was based on the automobile
exception to the warrant requirement, i.e., probable cause to believe that the
vehicle contained evidence of the charged crimes (see People v Jackson, 52 AD3d
1318, 1319, lv denied 11 NY3d 737; People v Brown, 24 AD3d 884, 886, lv denied
6 NY3d 832; see generally People v Blasich, 73 NY2d 673, 678-680). Inasmuch as
defendant made no allegations questioning the applicability of that exception,
he “did not raise any factual issue warranting a hearing” (People v Thomason,
37 AD3d 304, 305; see generally CPL 710.60 [3]; People v Mendoza, 82 NY2d 415,
421-422). Even assuming, arguendo, that defendant’s request for dismissal of
the indictment in each appeal based on police misconduct survives his pleas and
is preserved for our review (cf. People v Zer, 276 AD2d 259, 259, lv denied 96
NY2d 837), we conclude that the record does not establish any misconduct
sufficiently egregious to warrant that relief (see People v Peterkin, 12 AD3d
1026, 1027, lv denied 4 NY3d 766; People v Ranta, 203 AD2d 307, 307, lv denied
83 NY2d 970, reconsideration denied 85 NY2d 979; cf. People v Isaacson, 44 NY2d
511, 518-519, rearg denied 45 NY2d 776). Defendant’s further contention in
appeal No. 1 that the court erred in accepting his Alford plea in the absence
of “ ‘strong evidence of actual guilt’ ” in the record is not preserved for our
review because he failed to move to withdraw his plea or to vacate the judgment
of conviction (People v Elliott, 107 AD3d 1466, 1466, lv denied 22 NY3d 996;
see People v Heidgen, 22 NY3d 981, 981-982; see also People v Sherman, 8 AD3d
1026, 1026, lv denied 3 NY3d 681). In any event, we conclude that the record
contains the requisite evidence of guilt to support the plea (see People v
Richardson, 132 AD3d 1313, 1316, lv denied 26 NY3d 1149; Elliott, 107 AD3d at
1466; People v Stewart, 307 AD2d 533, 534). Defendant’s remaining challenges to
the voluntariness of his plea in each appeal are likewise unpreserved for our
review (see generally People v Gilbert, 111 AD3d 1437, 1437, lv
denied 22 NY3d 1138; Sherman, 8 AD3d at 1026), and we
decline to exercise our power to review them as a matter of discretion in the interest
of justice (see CPL 470.15 [3] [c]). Defendant further contends with respect to
each appeal that he was denied effective assistance of counsel because the
attorney who represented him at the time of his pleas had previously
represented one of the victims of the incident underlying appeal No. 1, and
thus had a conflict of interest. Defendant was informed of that potential conflict,
however, and agreed to waive it, “thereby waiving any claim of possible
prejudice resulting from the potential conflict” (People v Little, 139 AD3d
1356, 1357, lv denied 28 NY3d 933; see generally People v Roberts, 251 AD2d 431,
432, lv denied 92 NY2d 882, reconsideration denied 92 NY2d 904). We reject
defendant’s additional claims of ineffective assistance of counsel, “inasmuch
as he received ‘an advantageous plea [bargain] and nothing in the record casts
doubt on the apparent effectiveness of counsel’ ” (People v Hoyer, 119 AD3d 1457, 1458, quoting People v Ford, 86 NY2d
397, 04). We have reviewed defendant’s remaining contentions and concludethat
none warrants reversal or modification of the judgment in either appeal.
Entered: March 31, 2017 Frances E. Cafarell
Clerk of the Court
