State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 10, 2015 105960 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

BRANDON GRIFFIN,

Appellant.

________________________________

Calendar Date: October 23, 2015

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

__________

Theodore J. Stein, Woodstock, for appellant, and appellant

pro se.

D. Holley Carnright, District Attorney, Kingston (Joan

Gudesblatt Lamb of counsel), for respondent.

__________

Egan Jr., J.

Appeal from a judgment of the County Court of Ulster County

(Williams, J.), rendered April 17, 2013, convicting defendant

upon his plea of guilty of the crime of criminal possession of a

controlled substance in the third degree.

Defendant was indicted and charged with one count of

criminal possession of a controlled substance in the third

degree. The charge stemmed from a controlled buy that occurred

in the City of Kingston, Ulster County on September 11, 2012,

during the course of which defendant allegedly was found to be in

possession of 110 glassine envelopes of a substance that field

tested positive for heroin. When the parties appeared before

County Court in February 2013 for a suppression hearing and jury
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selection, defense counsel indicated that, despite having

rejected prior offers, defendant was interested in accepting a

plea. Following an extensive colloquy with County Court,

defendant pleaded guilty to the sole count of the indictment1 and

waived his right to appeal in exchange for a sentence of nine

years in prison followed by three years of postrelease

supervision. Defendant's subsequent pro se motion to withdraw

his plea was denied, and County Court thereafter sentenced

defendant in accordance with the terms of the plea agreement. 

Defendant now appeals, contending that the waiver of his right to

appeal was not knowing, intelligent and voluntary and that he was

denied the effective assistance of counsel.

We affirm. "When an appeal waiver is challenged, the

operative question is whether the trial court has confirmed on

the record that the defendant understands the terms and

conditions of his or her plea agreement" (People v Pope, 129 AD3d

1389, 1389 [2015] [citations omitted]). To that end, the court

is "not obliged to engage in any particular litany or catechism

in satisfying itself that a defendant has entered a knowing,

intelligent and voluntary appeal waiver" (People v Smith, 121

AD3d 1131, 1131 [2014], lv denied 24 NY3d 1123 [2015] [internal

quotation marks and citations omitted]). As long as the record

reflects "that there was some judicial examination of the waiver

itself" (People v McCaskill, 76 AD3d 751, 752 [2010] [internal

quotation marks and citation omitted]) and that the defendant had

"a full appreciation of the consequences of such waiver" (People

v Spellicy, 123 AD3d 1228, 1229 [2014], lv denied 25 NY3d 992

[2015] [internal quotation marks and citations omitted]), the

challenged waiver may be upheld.

1 Although the cover sheet of the indictment contains

references to crimes with which defendant was not charged and

County Court mistakenly inquired as to whether defendant was

pleading guilty to criminal possession of a controlled substance

in the first degree, it is otherwise clear from the record that

defendant was charged with and pleaded guilty to one count of

criminal possession of a controlled substance in the third

degree.
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Here, although County Court should have more clearly

distinguished defendant's right to appeal from the remainder of

the rights that defendant forfeited upon pleading guilty, the

record nonetheless reflects that County Court reviewed the waiver

with defendant and obtained the required assurances that

defendant fully appreciated the appellate rights that he was

waiving (see People v Waite, 120 AD3d 1446, 1447 [2014]; People v

Sylvan, 107 AD3d 1044, 1045 [2013], lv denied 22 NY3d 1141

[2014]). Notably, during the course of the colloquy between

County Court and defendant, defendant – evidencing his knowledge

of the criminal justice system – inquired as to whether the

waiver encompassed only those issues that could be raised upon a

"direct appeal" or extended to CPL article 440 motions and habeas

corpus proceedings as well. Following additional discussions

with County Court, defendant indicated that he had no further

questions and, when County Court urged defendant to pose any

inquiries that he may have to counsel prior to proceeding,

defendant replied, "I'm fine." Defendant was presented with a

copy of the detailed written waiver of appeal, which was amended

to address defendant's concern regarding his right to pursue

certain postplea applications, and was questioned as to his

understanding thereof. Again, defendant indicated that he

understood everything that had been discussed. Defendant then

executed the written waiver – the text of which expressly

delineated the separate and distinct nature of defendant's

appellate rights and confirmed that defendant had been afforded

"ample opportunity to discuss such rights and [the] waiver with

[his] attorney and to address and ask questions of [County] Court

regarding them." Under these circumstances, we are satisfied

that the record reflects that defendant's waiver of his right to

appeal his conviction and sentence was knowing, intelligent and

voluntary (see People v Tole, 119 AD3d 982, 982-983 [2014];

People v Henion, 110 AD3d 1349, 1350 [2013], lv denied 22 NY3d

1088 [2014]; People v White, 96 AD3d 1299, 1299-1300 [2012], lv

denied 19 NY3d 1029 [2012]; compare People v Pope, 129 AD3d at

1389-1390; People v Ritter, 124 AD3d 1133, 1134 [2015]; People v

Bouton, 107 AD3d 1035, 1036 [2013], lv denied 21 NY3d 1072

[2013]).

As to defendant's claim of ineffective assistance of

counsel, certain of the arguments raised by defendant in this
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regard – including his assertion that defense counsel failed to

conduct an adequate pretrial investigation (see People v Bahr, 96

AD3d 1165, 1166 [2012], lv denied 19 NY3d 1024 [2012]), seek out

and interview alibi witnesses (see People v Varmette, 70 AD3d

1167, 1172 [2010], lv denied 14 NY3d 845 [2010]), pursue certain

discovery demands and/or available defenses (see People v Davis,

114 AD3d 1003, 1003 [2014], lv denied 23 NY3d 962 [2014]), seek

sanctions for alleged prosecutorial misconduct (cf. People v

Jones, 101 AD3d 1482, 1483 [2012], lv denied 21 NY3d 1017 [2013])

and explain the collateral consequences of his plea (cf. People v

Balbuena, 123 AD3d 1384, 1386 [2014]) – involve matters outside

of the record and, as such, are more properly the subject of a

CPL article 440 motion. To the extent that the balance of

defendant's ineffective assistance of counsel claim impacts upon

the voluntariness of his plea, such claim survives the valid

appeal waiver but must be preserved by an appropriate

postallocution motion (see e.g. People v Moses, 110 AD3d 1118,

1118 [2013]). In this regard, the record reflects that defendant

made a pro se motion to withdraw his plea claiming, insofar as is

relevant here, that counsel's performance was deficient in that

she conspired with the People to procure an "excessive sentence,"

failed to adopt four of defendant's five pro se motions and

neglected to advocate for and secure a favorable plea deal. 

Accordingly, the additional grounds now advanced by defendant in

his pro se brief – including his assertions that counsel failed

to bring certain pretrial motions, neglected to correct

inaccurate information relative to defendant's criminal history

and failed to object to County Court's alleged bias – are

unpreserved for our review, as defendant did not advance these

specific grounds in his motion to withdraw his plea (see People v

Delarosa, 104 AD3d 956, 956 [2013], lv denied 21 NY3d 1003

[2013]; People v Escalante, 16 AD3d 984, 984-985 [2005], lvs

denied 5 NY3d 788, 793 [2005]).

In any event, "[d]efense counsel was not required to

support defendant's various pro se motions" (People v Blackwell,

129 AD3d 1690, 1691 [2015], lv denied 26 NY3d 926 [2015]; see

People v Jones, 261 AD2d 920, 920 [1999], lv denied 93 NY2d 972

[1999]; see also People v Adams, 66 AD3d 1355, 1356 [2009], lv

denied 13 NY3d 858 [2009]), and "the failure to make a particular

pretrial motion does not – per se – constitute ineffective
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assistance of counsel" (People v Alnutt, 107 AD3d 1139, 1145

[2013], lv denied 22 NY3d 1136 [2014]; see People v Carbone, 101

AD3d 1232, 1235 [2012]). Additionally, counsel did endeavor to

clarify and correct certain information contained in the

presentence investigation report (see People v Orengo, 286 AD2d

344, 344-345 [2001], affd 97 NY2d 739 [2002]) and, contrary to

defendant's assertion, the record falls far short of establishing

any colorable claim of judicial bias, thereby obviating any need

for counsel to take corrective action in this regard. The record

is similarly bereft of any evidence of a "conspiracy" to subject

defendant to an "excessive" sentence. In short, inasmuch as

defendant "receive[d] an advantageous plea and nothing in the

record casts doubt on the apparent effectiveness of counsel"

(People v Vonneida, 130 AD3d 1322, 1322 [2015] [internal

quotation marks and citations omitted]; accord People v Jenkins,

130 AD3d 1091, 1091 [2015]), we are satisfied that defendant was

afforded meaningful representation.

Finally, defendant's challenge to the perceived severity of

his sentence is precluded by his valid waiver of the right to

appeal (see People v Donah, 127 AD3d 1413, 1413 [2015]), and his

assertion that County Court should have assigned substitute

counsel to represent him is unpreserved for our review. 

Defendant's remaining arguments, to the extent not specifically

addressed, have been examined and found to be lacking in merit.

McCarthy, J.P., Lynch and Devine, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court