State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 21, 2016 107307 

107614

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

ALLEN FOREST,

Appellant.

________________________________

Calendar Date: May 26, 2016

Before: Lahtinen, J.P., Rose, Lynch, Clark and Aarons, JJ.

__________

Pamela B. Bleiwas, Ithaca, for appellant.

Gwen Wilkinson, District Attorney, Ithaca (Eliza Filipowski

of counsel), for respondent.

__________

Clark, J.

Appeals (1) from a judgment of the County Court of Tompkins

County (Cassidy, J.), rendered October 29, 2014, convicting

defendant upon his plea of guilty of the crime of forgery in the

second degree, and (2) by permission, from an order of said

court, entered May 12, 2015, which denied defendant's motion

pursuant to CPL 440.10 to vacate the judgment of conviction,

without a hearing.

In satisfaction of a five-count indictment stemming from

defendant's use of a stolen credit card to make unauthorized

purchases at two convenience stores, defendant pleaded guilty to

the crime of forgery in the second degree, admitting that he

signed the cardholder's name without permission. The plea
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agreement provided that defendant would successfully complete

drug treatment and then enter the Judicial Diversion Program

(hereinafter JDP) (see CPL 216.05) and that, upon his successful

completion of the JDP, he could withdraw his guilty plea and

enter a plea to a misdemeanor. The agreement contemplated that

if defendant failed to abide by the conditions of the JDP, he

could be sentenced, as a second felony offender, to a prison term

up to 31⁄2 to 7 years. Pursuant to the agreement, defendant signed

a plea memorandum outlining those plea terms, admitted his

predicate felony and agreed to waive his right to appeal. He

successfully completed substance abuse treatment, was accepted

into the JDP and signed a JDP contract. In September 2014,

defendant admitted that he had absconded from the drug court

program and violated the JDP contract conditions by failing to

report to drug court and by using drugs. County Court terminated

him from the JDP and imposed a prison sentence of 3 to 6 years. 

Defendant's subsequent motion pursuant to CPL 440.10 to vacate

the judgment was denied. Defendant now appeals from the judgment

and, with permission, from the order denying his motion to

vacate.

Defendant's contention that his guilty plea was not knowing

and voluntary, which survives the unchallenged appeal waiver (see

People v Moulton, 134 AD3d 1251, 1252 [2015]), was not preserved

for our review by an appropriate postallocution motion pursuant

to CPL 220.60 (3), despite ample opportunity to do so within the

many months between his guilty plea and sentencing (see People v

Labaff, 127 AD3d 1471, 1471 [2015], lv denied 26 NY3d 931 [2015];

People v Disotell, 123 AD3d 1230, 1231 [2014], lv denied 25 NY3d

1162 [2015]; see also People v Conceicao, 26 NY3d 375, 382

[2015]; People v Tyrell, 22 NY3d 359, 363-364 [2013]; People v

Peque, 22 NY3d 168, 182 [2013]). A review of the plea allocution

discloses that defendant did not say anything that raised

significant doubt as to his guilt or called into question the

voluntariness of his guilty plea so as to bring this case within

the narrow exception to the preservation requirement (see People

v Lopez, 71 NY2d 662, 665-666 [1988]; People v Disotell, 123 AD3d

at 1231; see also People v Williams, 27 NY3d 212, 220 [2016]).

Next, defendant's motion to vacate the judgment was
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premised upon the claim that, as relevant here, his guilty plea

was not knowing and voluntary as a result of ineffective

assistance of counsel, in that counsel failed to disclose to him

(or the prosecutor) that a witness had signed an exculpatory

affidavit prior to his guilty plea. Specifically, the witness

asserted that she had reviewed a photo supplied by the People,

taken from the convenience store surveillance video, and that the

woman depicted therein was her but that the man next to her in

the photo was not defendant, who she knew, and that she did not

witness him use a stolen credit card on that day. Initially,

while defendant claimed in his affidavit in support of the motion

that counsel did not disclose the affidavit to him, he did not

allege that he was unaware of it, and his letter to counsel

submitted in support of the motion suggests that he was aware of

it. Even assuming that defendant was unaware of the affidavit, a

letter to defendant from defense counsel explained that the

purpose of the affidavit was to impeach the witness if she were

called by the People to testify; as the charges were resolved

with a plea, there was no need to admit the affidavit into

evidence.1 Notably, two police officers identified defendant as

the person in the surveillance video and, when confronted with

pictures taken from that video, defendant admitted that it was

him depicted in that video and that he had made purchases at the

convenience store that day, and he later disclosed that he had

obtained the credit card from "a girl." In view of this strong

evidence of guilt, and given that the record establishes that

defendant received a favorable plea agreement that would have

allowed him to avoid a felony conviction and prison had he

complied with the drug court conditions, we are unpersuaded that

his guilty plea was not knowing or voluntary due to any

ineffective assistance of counsel or that he would not have

pleaded guilty had he known about the affidavit (see People v

1 The evidence established that defense counsel had

informed the prosecutor about this affidavit. Given that

defendant did not establish that his plea was procured by

misrepresentation or fraud "on the part of the court or a

prosecutor" (CPL 440.10 [1] [b]), this aspect of his motion to

vacate was properly denied. 
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Soprano, 135 AD3d 1243, 1243 [2016], lv denied 27 NY3d 1007

[2016]; People v Gonzalez, 130 AD3d 1089, 1090 [2015]). 

Accordingly, County Court properly denied defendant's motion to

vacate premised upon CPL 440.10 (1) (h).

Lahtinen, J.P., Rose, Lynch and Aarons, JJ., concur.

ORDERED that the judgment and order are affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court