                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: August 18, 2016                   107017
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

BRIAN CLARK,
                    Appellant.
________________________________


Calendar Date:   April 29, 2016

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

                             __________


     Adam G. Parisi, Schenectady, for appellant.

      Robert M. Carney, District Attorney, Schenectady (Peter H.
Willis of counsel), for respondent.

                             __________


Lynch, J.

      Appeal from a judgment of the County Court of Schenectady
County (Drago, J.), rendered July 16, 2014, convicting defendant
upon his plea of guilty of the crime of criminal possession of a
controlled substance in the fifth degree.

      In October 2013, defendant was charged in a four-count
indictment with the crimes of criminal possession of a controlled
substance in the fifth degree (two counts) and criminal sale of a
controlled substance in the fourth degree (two counts). He
thereafter pleaded guilty, pursuant to a plea agreement, to
criminal possession of a controlled substance in the fifth degree
                              -2-                107017

in full satisfaction of the indictment and executed a written
waiver of his right to appeal in open court. Consistent with the
terms of the plea agreement, County Court sentenced defendant to
five years of probation, imposed 100 hours of community service
and ordered him to pay restitution. Defendant now appeals.

      Defendant maintains that he was deprived of meaningful
representation concerning his plea because defense counsel
misinformed him that he could still appeal a claim of juror bias.
This issue came to light at sentencing. When asked by County
Court if he wished to be heard, defendant responded, "I guess the
only thing I wanted to say is that I wanted to make sure – I know
you can't appeal this, but I wanted to appeal the things that –
[defense counsel] said I can go to the [a]ppellate [c]ourt,
because the member of the grand jury was a friend of mine for six
years, a neighbor." Defense counsel directly responded that
"[h]e certainly can appeal it" and added, "I've explained it to
him probably 20 times" – leaving little question that "it" refers
to the juror bias claim. Defendant countered, "No, today was the
first time you ever explained that to me." County Court left the
issue unresolved, simply responding that "if you feel you have an
appealable issue that the Appellate Division can hear you
certainly have the right to appeal."

      While defendant couches his claim in terms of an invalid
appeal waiver, we find that defendant's claim actually presents a
threshold question of forfeiture, i.e., whether a claim of
potential juror bias in the grand jury survives a plea. Notably,
defendant made no such specific claim in his preplea motion to
dismiss the indictment, contending only generally that the
proceedings were impaired by irregularities (see CPL 210.35 [5];
compare People v Washington, 82 AD3d 1675, 1676 [2011], lv denied
19 NY3d 1106 [2012]). County Court denied the motion, finding no
infirmities in the grand jury minutes that would warrant a
dismissal. Since we do not perceive the claim to be
jurisdictional or to implicate "rights of a constitutional
dimension that go to the very heart of the process" (People v
                              -3-                107017

Hansen, 95 NY2d 227, 230-231 [2000]), we conclude that a claim of
juror bias would actually be forfeited upon a guilty plea (see
People v Hansen, 95 NY2d at 231).

      Inasmuch as defendant's misunderstanding as to his ability
to appeal the juror bias issue was brought to County Court's
attention at sentencing, we find that defendant's challenge to
the voluntariness of his plea has been sufficiently preserved for
our review (see generally CPL 470.05 [2]; compare People v Garay,
25 NY3d 62, 67 [2015], cert denied ___ US ___, 136 S Ct 501
[2015]; People v Green, 54 NY2d 878, 880 [1981]), notwithstanding
the absence of an appropriate postallocution motion. Once County
Court learned that defendant had been given erroneous advice by
counsel, the court should have conducted a further inquiry to
ascertain whether defendant wished to go forward with the plea
(cf. People v Bendross, 153 AD2d 75, 76-77 [1989]). Absent such
inquiry by County Court, and in light of the fact that the record
otherwise presents "a genuine issue of fact as to the knowing,
intelligent and voluntary nature of defendant's guilty plea"
(People v Bass, 118 AD3d 1033, 1034 [2014] [internal quotation
marks and citation omitted], lv denied 24 NY3d 959 [2014];
compare People v Santiago, 121 AD3d 528, 528 [2014], lvs denied
24 NY3d 1117, 1123 [2015]), this matter must be remitted to
County Court to afford defendant an opportunity to either accept
the plea that was offered or move to withdraw his plea (cf.
People v Denegar, 130 AD3d 1140, 1141-1142 [2015]). By so
concluding, we are not resolving the question as to whether
defendant was deprived of meaningful representation – only
referring that question to County Court for resolution in the
first instance.

     Egan Jr., Rose and Aarons, JJ., concur.
                               -4-               107017

McCarthy, J.P. (dissenting).

      Because the record does not support the conclusion that
defendant preserved the issue or that he was provided ineffective
assistance of counsel, I respectfully dissent. The majority
concludes that, based on statements that defendant and his
counsel made at a sentencing hearing, counsel conceded to having
advised defendant that he would be able to raise a grand jury
issue on appeal, despite defendant having pleaded guilty and
having waived his right to appeal. The majority finds that
County Court ought to have interpreted the statements in the same
manner that the majority now does and concluded that counsel was
describing erroneous legal advice – despite no one arguing that
it was erroneous legal advice or seeking any legal relief
whatsoever from the court – and that therefore defendant
preserved the contention that his plea was involuntary based upon
ineffective assistance of counsel. Further, and rather than
answering the purely legal question of whether defendant's
contentions even amounted to a prima facie ineffective assistance
of counsel claim, the majority determines that it ought to remit
and "refer[]" the issue to County Court for further inquiry.
Contrary to these conclusions, defendant's contention is not
preserved, and, even assuming that he received erroneous legal
advice, he failed to make out a prima facie claim that he was
deprived of meaningful representation. Accordingly, the judgment
should be affirmed.

      Initially, "[w]hile defendant's waiver of his right to
appeal does not bar his ineffective assistance of counsel claim
insofar as it relates to the voluntariness of his plea, his
failure to move to withdraw his plea or vacate the judgment of
conviction renders such claim unpreserved for our review" (People
v Dobrouch, 59 AD3d 781, 781 [2009] [citations omitted], lv
denied 12 NY3d 853 [2009]; see People v Lord, 128 AD3d 1277, 1278
[2015]; People v Royce, 122 AD3d 1008, 1009 [2014]; People v
                              -5-                107017

Ildefonso, 89 AD3d 1327, 1327 [2011]).1 Moreover, defendant made
no statements during the plea colloquy that would bring this
contention within the narrow exception to the preservation
requirement (see People v Pickett, 128 AD3d 1275, 1276 [2015],
lvs denied 26 NY3d 930, 933 [2015]).

      Even if I assumed, for the sake of argument, that the
majority correctly interprets the record in concluding that
defense counsel indicated that she advised defendant that he
could raise his grand jury claim on appeal,2 defendant would


    1
        According to the majority's logic, the fact that an
alleged error occurs before a trial court "br[ings] to County
Court's attention" the error, thereby preserving it. That logic
is directly contrary to the legal requirement that a litigant
such as defendant "expressly or impliedly s[eek] or request[] a
particular ruling or instruction" in order to preserve an issue
(CPL 470.05 [2]). One cannot conclude that defendant, in making
a statement about his desire to appeal that did not even
reference his guilty plea, impliedly sought to withdraw or vacate
his guilty plea based on ineffective assistance of counsel.
Further, it is unreasonable to expect that County Court should
have concluded that defendant was attempting to make out an
ineffective assistance of counsel claim based on the colloquy
that occurred at sentencing, particularly in light of defendant's
previous assurance, at the time of the plea, that he was
satisfied with the services of counsel.
    2
        At no point in the colloquy did counsel state that she
advised defendant that his grand jury issue could be reviewed by
an appellate court; in the midst of a larger discussion, she
stated that "[defendant] certainly can appeal it." It is
ambiguous what "it" refers to in this context, since it could
either mean the judgment – describing correct legal advice – or
defendant's particular grand jury issue – describing incorrect
legal advice. The majority's decision to resolve this ambiguity
in favor of the conclusion that counsel gave erroneous legal
                              -6-                107017

still have failed as a matter of law to establish any resulting
prejudice. With regard to a guilty plea, in order to establish
an ineffective assistance of counsel claim pursuant to the
federal constitution, a defendant must prove, among other things,
"that there is a reasonable probability that, but for counsel's
errors, he [or she] would not have pleaded guilty and would have
insisted on going to trial" (Hill v Lockhart, 474 US 52, 59
[1985]; accord People v McDonald, 1 NY3d 109, 114 [2003]). Here,
defendant failed to make even a prima facie showing of prejudice
given that he made no assertion that, but for his belief that he
could seek appellate review of the grand jury issue, he would not
have pleaded guilty.3 Accordingly, defendant failed to make out
a prima facie federal constitutional claim of ineffective
assistance of counsel (see People v McDonald, 1 NY3d at 115;
compare People v Williams, 72 AD3d 1347, 1348 [2010]).

      Finally, defendant also failed to make a prima facie claim
that he was, despite the absence of prejudice, deprived of
meaningful representation pursuant to the NY Constitution. "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, the constitutional requirement will have been


advice is difficult to reconcile with our obligation to employ a
presumption of competence on the part of an attorney in the
context of an ineffective assistance of counsel claim (see
Strickland v Washington, 466 US 668, 689 [1984]; People v Rivera,
71 NY2d 705, 709 [1988]; People v Torres, 13 AD3d 562, 563
[2004]; People v Vecchio, 228 AD2d 820, 821 [1996]).
    3
        The burden of proving ineffective assistance of counsel
is on a defendant and not on a trial court. There is no basis in
law for the majority's conclusion that County Court, in the midst
of conducting a sentencing hearing, was required to conduct a
"further inquiry to ascertain whether defendant wished to go
forward with the plea."
                              -7-                107017

met" (People v Baldi, 54 NY2d 137, 147 [1981] [citations
omitted]; accord People v Rivera, 71 NY2d 705, 708 [1988]). Even
if defendant's grand jury contention could survive his guilty
plea and his appeal waiver, it would be unpreserved for our
review – a fact that the majority concedes – given his failure to
raise this specific claim in his motion to dismiss the indictment
(see People v Miller, 27 AD3d 1017, 1018 [2006]; People v Stabb,
9 AD3d 738, 739 [2004], lv denied 3 NY3d 712 [2004]). Further,
defendant does not contend that defense counsel ought to have
raised the issue in the motion to dismiss the indictment; this
may be for good reason, as a review of the grand jury minutes
establishes that there is no factual basis for defendant's
assertion that a friend and neighbor served on the grand jury.
Thus, the single, nonprejudicial error that the majority finds
warrants remittal was counsel's legal advice regarding the merits
of an unpreserved issue that counsel may have already
investigated and determined had no factual basis.

      Moreover, meaningful representation inquiries must consider
the representation as a whole. After defendant was charged with
two class C felonies and two class D felonies (see Penal Law §§
220.06, 220.34), his counsel secured a plea bargain to one class
D felony, which automatically reduced defendant's maximum
exposure from any single count from a prison term of 5½ years to
a prison term of 2½ years (compare Penal Law § 70.70 [2] [a]
[ii], with Penal Law § 70.70 [2] [a] [iii]). In addition, terms
of the plea agreement capped defendant's potential incarceration
to a six-month jail term. Further, after defense counsel's
advocacy in regard to sentencing, and despite the fact that
defendant had previous misdemeanor convictions for petit larceny,
criminal trespass, criminal contempt and criminal sale of
marihuana, County Court imposed a sentence that included no
incarceration. Considering the representation as a whole, and
particularly noting the fact that defendant was not prejudiced by
any alleged error and otherwise received an extremely favorable
outcome, defendant failed to make a prima facie showing that he
was deprived of meaningful representation (People v Briggs, 138
                              -8-                  107017

AD3d 1355, 1356 [2016]; People v Pickett, 128 AD3d at 1276;
People v Wares, 124 AD3d 1079, 1081 [2015], lv denied 25 NY3d 993
[2015]; People v Carlton, 120 AD3d 1443, 1444-1445 [2014], lv
denied 25 NY3d 1070 [2015]). Given that defendant's remaining
arguments are also without merit, I would affirm.




      ORDERED that the order is modified, on the law, by vacating
the sentence imposed; matter remitted to the County Court of
Schenectady County for further proceedings not inconsistent with
this Court's decision; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
