                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered:   March 26, 2015                  105404
                                                       105833
________________________________

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

MATTHEW WIGGINS,
                    Appellant.
________________________________


Calendar Date:   January 5, 2015

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

                             __________


     Gail B. Rubenfeld, Monticello, for appellant.

      James R. Farrell, District Attorney, Monticello (Katy
Schlichtman of counsel), for respondent.

                             __________


Lynch, J.

      Appeals (1) from a judgment of the County Court of Sullivan
County (McGuire, J.), rendered November 15, 2012, convicting
defendant upon his plea of guilty of the crime of criminal
possession of a controlled substance in the fourth degree, and
(2) by permission, from an order of said court, entered April 2,
2013, which denied defendant's motion pursuant to CPL 440.10 to
vacate the judgment of conviction, without a hearing.

      Defendant was charged in a single count indictment with
criminal possession of a controlled substance in the fourth
degree stemming from his arrest at the mobile home of Joseph
Orrego. On August 29, 2012, defendant pleaded guilty to the
charge and waived his right to appeal. Prior to sentencing,
                              -2-                105404
                                                 105833

defendant moved to withdraw his plea and for the assignment of
new counsel. County Court denied the motion except to the extent
of assigning new counsel for purposes of sentencing. Defendant
was then sentenced to the agreed-upon prison term of 4½ years
followed by three years of postrelease supervision. His motion
to vacate the judgment of conviction pursuant to CPL 440.10 was
denied without a hearing. Defendant now appeals from the
judgment of conviction and, by permission, from the order denying
his CPL 440.10 motion.

      Despite the fact that defendant's waiver of his right to
appeal was otherwise valid, we agree that defendant's plea – the
terms of which included defendant's waiver of his right to appeal
– was not knowing and therefore must be vacated. As to this
argument, defendant maintains that his plea should be vacated
because his counsel, the People and County Court all erred in
addressing his eligibility for a shock incarceration program (see
Correction Law art 26-A). Initially, a claim of ineffective
assistance of counsel survives a valid appeal waiver "to the
extent that a defendant alleges that counsel's ineffectiveness
impacted upon the voluntariness of his or her guilty plea"
(People v Devino, 110 AD3d 1146, 1147 [2013]). A motion to
vacate a guilty plea "generally will not be granted absent
evidence of fraud, innocence or mistake in the inducement"
(People v McKinney, 122 AD3d 1083, 1083-1084 [2014]; see CPL
220.60 [3]; People v Mitchell, 73 AD3d 1346, 1347 [2010], lv
denied 15 NY3d 922 [2010]).

      During the plea allocution, defendant's counsel informed
County Court that he had advised defendant that he was eligible
for the shock incarceration program and that defendant was
"entering his plea based upon my advice to that effect." While
County Court made clear that the decision on whether defendant
would be approved for the program rested with the Commissioner of
Corrections and Community Supervision, the court indicated that
it would either take no position or give a positive
recommendation at sentencing. When the court inquired whether
defendant would be eligible given his prior burglary conviction,
the prosecutor responded that it was "likely" that defendant
would be accepted into the program. The flaw in this discussion
                              -3-                105404
                                                 105833

is that, having previously been convicted of a violent felony,
defendant was not eligible for the program (see Correction Law
§ 865 [1]; 7 NYCRR 1800.4 [b] [1]). This is not a situation as
in People v Benson (100 AD3d 1108 [2012]) and People v Williams
(84 AD3d 1417 [2011], lv denied 17 NY3d 863 [2011]), where
neither the defendant's eligibility nor ultimate admission into
the shock incarceration program was a condition of the plea.
Here, as counsel's statement quoted above confirms, defendant's
eligibility for the program was the express basis for his plea.
Moreover, by focusing on a potential recommendation and the
likelihood of defendant being allowed to participate, the
responding commentary of the court and prosecutor, however
unintended, was misleading. Given the mistake by all involved in
the plea proceeding, and counsel's failure to provide meaningful
representation on this issue, we agree with defendant's
contention that his motion to withdraw his guilty plea should
have been granted.

      Further, having vacated defendant's guilty plea, including
the waiver of the right to appeal that was one of its terms, we
turn to defendant's additional contention that he received
ineffective assistance of counsel prior to the plea, specifically
in regard to his suppression motion. In the initial suppression
motion, counsel misstated that the seizure occurred when the
police were "in defendant's apartment on an unrelated matter."
While County Court recognized that defendant was actually
arrested in the home of Orrego, the court determined, in an order
dated August 1, 2012, that defendant lacked standing to challenge
the warrantless entry into Orrego's home since defendant failed
to show any connection to the home "beyond that of his mere
transient presence." While this motion was pending, defense
counsel received an affidavit from Orrego explaining that
defendant was one of his "house guests for the night" and that
the police entered his home over his objection. Remarkably, in a
letter dated July 26, 2012, counsel inaccurately informed
defendant that the People had consented to a suppression hearing
concerning the search of the home and failed to alert the court
of the Orrego affidavit. While counsel renewed his motion for a
suppression hearing on August 14, 2012 relying on the Orrego
affidavit, County Court again denied the motion finding, in part,
                              -4-                105404
                                                 105833

that the Orrego affidavit was not newly discovered evidence (see
CPL 710.40 [4]). This decision was made on August 29, 2012, the
same day that defendant entered his plea.

      Since we have determined that the plea must be vacated, and
the case remitted to County Court for further proceedings, we
further note that a trial court is not obligated to conduct a
suppression hearing "unless the accused alleges facts that, if
true, demonstrate standing to challenge the search or seizure"
(People v Burton, 6 NY3d 584, 587 [2006]). Pertinent here, "an
overnight guest has an expectation of privacy in the host's home"
and, thus, standing to contest a search of that home (People v
Perretti, 278 AD2d 597, 599 [2000], lv denied 96 NY2d 762 [2001];
see Minnesota v Olson, 495 US 91, 98-99 [1990]; People v Ortiz,
83 NY2d 840, 842 [1994]; People v Murray, 169 AD2d 843, 844 [2d
Dept 1991], lv denied 78 NY2d 1013 [1991]). In our view, the
facts set forth in the Orrego affidavit necessitated, at a
minimum, that a hearing be held to determine whether defendant
had standing to contest the search (see People v Mabeus, 47 AD3d
1073, 1075 [2008]; see also People v Jose, 239 AD2d 172, 173
[1997]; People v Cordoba, 179 AD2d 404, 404 [1992]; compare
People v Scully, 14 NY3d 861, 864 [2010]).

      Defendant's remaining arguments on his appeal from the
judgment of conviction, as well as his appeal from the order
denying his CPL article 440 motion, have been rendered academic
by our decision.

     McCarthy, J.P., and Garry, J., concur.


Clark, J. (dissenting).

      Because defendant's admission into a shock incarceration
program was not a condition of his plea agreement, we
respectfully dissent. Even though defense counsel, the People
and County Court all ascribed to the mistaken impression that
defendant would be eligible for such program, their error is
irrelevant to our analysis of the validity of the plea to the
extent that shock incarceration was not promised to defendant and
                              -5-                  105404
                                                   105833

his eligibility was not a condition of his plea.

      At the plea proceeding, County Court twice recited the
terms of defendant's plea agreement stating that, "at the time of
sentencing, the People will recommend a term of [4½] years in
state prison plus three years of post release supervision, there
will be fines and surcharges, the maximum fine on this is
$15,000, the surcharges are about $375." Defendant acknowledged
these terms and indicated that no other promises had been made.
Upon being advised by counsel that defendant was entering his
plea based upon the advice that he would be eligible for a shock
program if he received a sentence of less than five years, the
court indicated that it would keep an open mind about the program
and would either take no position or positively recommend it.
Moreover, the record demonstrates defendant's acknowledgment of
County Court's explanation that whether he was ultimately
admitted into a shock incarceration program was the decision of
the Commissioner of Corrections and Community Supervision and not
the court. Thus, we find the circumstances here to be no
different from those presented in People v Benson (100 AD3d 1108
[2012]) or People v Williams (84 AD3d 1417 [2011], lv denied 17
NY3d 863 [2011]). Accordingly, we find that defendant's plea was
knowingly, intelligently and voluntarily made and would affirm
the judgment of conviction.

      Furthermore, based upon defendant's valid waiver of his
right to appeal, we find that defendant's arguments with respect
to the suppression issue are not preserved for our review.

     Egan Jr., J., concurs.
                              -6-                  105404
                                                   105833

      ORDERED that the judgment is reversed, on the law, plea
vacated and matter remitted to the County Court of Sullivan
County for further proceedings not inconsistent with this Court's
decision.

      ORDERED that the appeal from the order is dismissed, as
academic.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
