The People, Appellant,v.Anthony Griffin, Respondent.BriefN.Y.February 13, 2013 To be argued by SHEILA O’SHEA (15 Minutes Requested) Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, - against - ANTHONY GRIFFIN, Defendant-Respondent. R E P L Y B R I E F F O R A P P E L L A N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov ALAN GADLIN SHEILA O’SHEA ASSISTANT DISTRICT ATTORNEYS Of Counsel AUGUST 30, 2012 TABLE OF CONTENTS Page INTRODUCTION................................................................................................................ 1 POINT I BY PLEADING GUILTY, DEFENDANT FORFEITED HIS CLAIM THAT JUSTICE SCHERER IMPROPERLY RELIEVED ASSIGNED COUNSEL. IN ANY EVENT, THE APPELLATE DIVISION'S ERRONEOUS FINDING THAT THE JUDGE VIOLATED DEFENDANT’S RIGHT TO COUNSEL OF CHOICE PRESENTS A REVIEWABLE LEGAL ISSUE. MOREOVER, THE PEOPLE WERE NOT RESPONSIBLE FOR THE DISMISSAL OF ASSIGNED COUNSEL ....................................................................................................... 2 POINT II JUSTICE MCLAUGHLIN PROPERLY DENIED DEFENDANT’S MOTION TO WITHDRAW HIS GUILTY PLEA WITHOUT CONDUCTING A FORMAL HEARING ................................................................................. 19 CONCLUSION ................................................................................................................... 43 ii TABLE OF AUTHORITIES FEDERAL CASES Batson v. Kentucky, 476 U.S. 79 (1986).............................................................................. 7 Strickland v. Washington, 466 U.S. 668 (1984) .................................................................. 4 Tollett v. Henderson, 411 U.S. 258 (1973) ...................................................................... 7-8 United States v. Contractor, 926 F.2d 128 (2d Cir. 1991) ............................................... 41 United States v. Moussaoui, 591 F.3d 263 (4th Cir. 2010) ............................................... 4 STATE CASES People v. Alexander, 97 N.Y.2d 482 (2002) ................................................................ 27-28 People v. Baker, 64 N.Y.2d 1027 (1985) ........................................................................... 12 People v. Baret, 11 N.Y.3d 31 (2008) .......................................................................... 27, 30 People v. Beriguette, 84 N.Y.2d 978 (1994) ..................................................................... 42 People v Bravo, 72 A.D.3d 697 (2d Dept. 2010) ............................................................. 35 People v. Brown, 14 N.Y.3d 113 (2010) .......................................................... 27-28, 42-43 People v. Calvello, 70 A.D.3d 847 (2d Dept. 2010) .......................................................... 7 People v. Cepeda, 29 A.D.3d 491 (1st Dept. 2006) ......................................................... 31 People v. Champagne, 72 A.D.3d 557 (1st Dept. 2010) ................................................. 33 People v. Charleston, 56 N.Y.2d 886 (1982) ...................................................................... 6 People v. Chestnut, 2012 NY Slip Op. 4375, 2012 N.Y. LEXIS 1317 (June 7, 2012) ................................................................................................................................. 10 People v. Clough, 306 A.D.2d 556 (3d Dept. 2003) ........................................................ 33 People v. Cona, 49 N.Y.2d 26 (1979) .................................................................................. 3 People v. DiRaffaele, 55 N.Y.2d 234 (1982) ...................................................................... 7 People v. Dixon, 29 N.Y.2d 55 (1971) ......................................................................... 30-31 iii People v. Feliciano, 53 N.Y.2d 645 (1981) ....................................................................... 27 People v. Fiallo, 6 A.D.3d 176 (1st Dept. 2004) .............................................................. 41 People v. Fifield, 24 A.D.3d 1221 (4th Dept. 2005) ........................................................ 33 People v. Fiumefreddo, 82 N.Y.2d (1993) ........................................................................ 28 People v. Frederick, 45 N.Y.2d 520 (1978) ....................................................................... 28 People v. Garcia, 37 A.D.3d 355 (1st Dept. 2007) .......................................................... 35 People v. Gaskin, 2 A.D.3d 347 (1st Dept. 2003) ............................................................ 30 People v. Goldstein, 12 N.Y.3d 295 (2009) ................................................................ 29, 32 People v. Green, 75 N.Y.2d 902 (1990) .............................................................................. 7 People v. Griffin, 92 A.D.3d 1 (1st Dept. 2011) ................................................................ 2 People v. Guy, 63 A.D.3d 609 (1st Dept. 2009) .............................................................. 40 People v. Haffiz, 2012 N.Y. Slip Op. 4376, 2012 N.Y. LEXIS 1312 (June 7, 2012) ................................................................................................................................. 28 People v. Hansen, 95 N.Y.2d 227 (2000) ............................................................................ 3 People v. Harris, 61 N.Y.2d 9 (1983) ................................................................................ 29 People v. Henriquez, 68 N.Y.2d 679 (1986) ..................................................................... 14 People v. Hinton, 81 N.Y.2d 867 (1993)........................................................................... 12 People v. Keith, 26 A.D.3d 879 (4th Dept. 2006) ........................................................... 31 People v. Kessler, 5 A.D.3d 504 (2d Dept. 2004) ............................................................ 31 People v. Lane, 56 N.Y.2d 1 (1982) ................................................................................... 28 People v. Lopez, 6 N.Y.3d 248 (2006) ................................................................................ 3 People v. Mackey, 77 N.Y.2d 846 (1991) .......................................................................... 34 People v. Mason, 56 A.D.3d 1201 (4th Dept. 2008) ....................................................... 37 People v. Miller, 42 N.Y.2d 946 (1977) ............................................................................. 32 iv People v. Nixon, 21 N.Y.2d 338 (1967) ............................................................................ 29 People v. Patterson, 93 N.Y.2d 80 (1999) ......................................................................... 27 People v. Petgen, 55 N.Y.2d 529 (1982) .......................................................................... 4-5 People v. Potter, 294 A.D.2d 603 (2d Dept. 2002) .......................................................... 41 People v. Reiblein, 200 A.D.2d 281 (3d Dept. 1994) ........................................................ 7 People v Resto-Perez, 82 A.D.3d 532 (1st Dept. 2011) .................................................. 37 People v. Rickert, 58 N.Y.2d 122 (1983) ........................................................................... 14 People v. Rodriguez, 55 N.Y.2d 776 (1981) ....................................................................... 7 People v. Rogers, 163 A.D.2d 337 (2d Dept. 1990) ........................................................ 33 People v. Seeber, 4 N.Y.3d 780 (2005) .............................................................................. 27 People v. Smith, 59 N.Y.2d 156 (1983) ............................................................................. 27 People v. Taylor, 82 A.D.3d 1291 (3d Dept. 2011) ......................................................... 35 People v. Tinsley, 35 N.Y.2d 926 (1974) ...................................................................... 27-28 People v. Trombley, 91 A.D.3d 1197 (3d Dept. 2012) ................................................... 41 People v. Tuttle, 141 A.D.2d 584 (2d Dept. 1988) .......................................................... 40 People v. Williams, 206 A.D.2d 398 (2d Dept. 1994) ..................................................... 30 People v. Wyant, 47 A.D.3d 1068 (3d Dept. 2008) ......................................................... 30 People v. Yut Wai Tom, 53 N.Y.2d 44 (1981) ................................................................. 14 STATE STATUTES CPL 220.60 ............................................................................................................................ 29 CPL 220.60(3) ....................................................................................................................... 27 CPL 450.90(2)(a) ................................................................................................................... 16 CPL 470.05(2) ....................................................................................................................... 11 v CPL 470.25(2)(d) .................................................................................................................. 14 Penal Law § 70.08(2) ............................................................................................................ 32 Penal Law § 70.08(3) ............................................................................................................ 32 OTHER AUTHORITIES Karger, Powers of the New York Court of Appeals (3d ed.) ......................................... 14 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- ANTHONY GRIFFIN, Defendant-Respondent. REPLY BRIEF FOR APPELLANT INTRODUCTION The People submit this brief in reply to the brief filed by defendant- respondent Anthony Griffin, and in further support of the People’s appeal from the December 15, 2011 order of the Appellate Division, First Department. That order reversed an October 19, 2006 judgment of the Supreme Court, New York County, convicting defendant-respondent, upon his guilty plea, of Robbery in the First Degree and Attempted Robbery in the First Degree, vacated his plea and remanded the matter to Supreme Court for further proceedings. 2 POINT I BY PLEADING GUILTY, DEFENDANT FORFEITED HIS CLAIM THAT JUSTICE SCHERER IMPROPERLY RELIEVED ASSIGNED COUNSEL. IN ANY EVENT, THE APPELLATE DIVISION'S ERRONEOUS FINDING THAT THE JUDGE VIOLATED DEFENDANT’S RIGHT TO COUNSEL OF CHOICE PRESENTS A REVIEWABLE LEGAL ISSUE. MOREOVER, THE PEOPLE WERE NOT RESPONSIBLE FOR THE DISMISSAL OF ASSIGNED COUNSEL (Answering Defendant’s Brief, Points I and II). The People argued before the Appellate Division that defendant’s right to counsel claim was forfeited by his guilty plea, as well as without merit. The Appellate Division rejected the People’s forfeiture argument without explanation, simply asserting that the “issue [was not] waived by defendant’s guilty plea.” People v. Griffin, 92 A.D.3d 1 (1st Dept. 2011) (A12-13).1 Further, the Appellate Division found that the trial court abused its discretion and interfered with defendant’s right to counsel when it discharged the Legal Aid Society as defendant’s assigned counsel (A5, A11). Defendant claims that this appeal presents no question of law reviewable by this Court. In addition, defendant argues that the Appellate Division correctly decided the issue on the merits. Defendant’s claims are unavailing. 1 Parenthetical references preceded by “A” are to the Appendix submitted with the People’s main brief. 3 A. Defendant asserts that the Appellate Division’s reversal was “based upon an unpreserved error,” involved the court’s “discretionary powers,” and “rested on a review of the facts” (Defendant’s Brief at 21, 23-25). Accordingly, defendant argues that this Court lacks jurisdiction to hear the appeal and that the appeal should be dismissed (Defendant’s Brief at 22, 25). However, none of these arguments pertains to the threshold issue of whether defendant’s choice of counsel claim survives his guilty plea. Plainly, that issue presents a pure question of law. After all, this Court has repeatedly held that forfeiture occurs by “operation of law” as a consequence of a guilty plea, with respect to issues that do not survive the plea. See, e.g., People v. Lopez, 6 N.Y.3d 248, 256 (2006); People v. Hansen, 95 N.Y.2d 227, 230 n.1 (2000). In the many cases in which this Court has addressed whether a particular claim has been forfeited by a guilty plea, the Court has never even hinted that the issue could involve a question of fact beyond this Court’s review or a discretionary determination. Cf. People v. Cona, 49 N.Y.2d 26, 33-34 (1979) (whether a claim is preserved is a question of law that this Court may review). Indeed, defendant does not attempt to explain why the issue of whether his choice of counsel claim survived his guilty plea is not reviewable by this Court. In fact, defendant does not even actually state that the forfeiture issue is non-reviewable; 4 he simply ignores the forfeiture question in the point seeking dismissal of the appeal. Rather, defendant focuses exclusively on the supposed lack of reviewability of his underlying claim. As to the merits of the forfeiture argument, in insisting that the “People’s forfeiture argument must fail,” defendant does little more than assert that no New York case “has held that that a guilty plea forfeits a counsel of choice issue on appeal” (Defendant’s Brief at 35). However, as the People pointed out in their main brief (People’s Brief at 25-26), in People v. Petgen, 55 N.Y.2d 529, 534-35 (1982), this Court held that an ineffective assistance of counsel claim can be forfeited by a guilty plea.2 Given that holding, the Court should certainly find forfeiture here. At issue in Petgen was an attorney’s failure to function as the counsel guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). Here, instead of complaining that he had no true attorney, defendant is merely claiming that he should have had a different attorney. Defendant does not even try to explain why, if the counsel claim in Petgen was forfeited, the counsel claim he raises here should not be. 2 Contrary to defendant’s assertion, in United States v. Moussaoui, 591 F.3d 263 (4th Cir. 2010), the Fourth Circuit did “explicitly hold that counsel of choice claims are forfeited by a guilty plea” (Defendant’s Brief at 35, n.16). In Moussaoui, the defendant was claiming that that the district court’s pre-plea rulings violated various rights, including his “Fifth and Sixth Amendment rights to obtain counsel of his choice.” 591 F.3d at 279. The Fourth Circuit held that those claims were “not cognizable on appeal,” then specified that, “having pled guilty,” the defendant “waived all non-jurisdictional errors leading up to his conviction except those affecting the adequacy of his plea.” Id. at 280. 5 Indeed, he declines even to mention Petgen -- a solid sign that he has no plausible way to distinguish it. Another recognition that defendant has no rejoinder to the People’s forfeiture argument is his attempt to recast his appellate claim. He now maintains that Justice Scherer engaged in “disparate and disparaging treatment of the Legal Aid Society” (Defendant’s Brief at 35). According to defendant, that “error” implicated “the integrity of the process” and, therefore, survives his guilty plea (Defendant’s Brief at 35). However, that was not the claim underlying the Appellate Division’s reversal of his conviction. And, even if it were, that newly retooled claim would not survive defendant’s plea either. As shown by the language of the Appellate Division’s decision, the claim before that court, and the claim upon which that court granted defendant relief, was simply that the trial judge interfered with defendant’s attorney-client relationship with the Legal Aid Society and thereby deprived him of his counsel of choice. See A5 (the court’s discharge of the Legal Aid Society “interfered with defendant’s right to counsel”); A11 (“the court improperly interfered with an established attorney-client relationship between defendant and the Legal Aid Society”); A12 (the violation of defendant’s “right to counsel of his own choosing” was per se reversible error). Indeed, before this Court, defendant characterizes his claim in precisely those same terms. For example, defendant asserts that Justice Scherer’s actions “unjustifiably 6 interfered with an established attorney-client relationship” and thus “violated [his] right to counsel of choice” (Defendant’s Brief at 26). Likewise, defendant maintains that the Appellate Division “correctly determined that Justice Scherer had violated [his] constitutional right to counsel of choice when it unjustifiably relieved the Legal Aid Society as assigned counsel” (Defendant’s Brief at 27). Finally, defendant concludes, “Justice Scherer improperly interfered with an established attorney-client relationship between [him] and the Legal Aid Society” (Defendant’s Brief at 34). Indeed, if defendant had really been complaining about Justice Scherer’s purportedly “disparate” treatment of the Legal Aid Society, he or his Society attorneys surely would have made a motion to that effect before the trial judge. However, they failed to do that. Counsel simply protested the Legal Aid Society’s removal from the case. Cf. People v. Charleston, 56 N.Y.2d 886, 887-888 (1982) (to preserve a claim of judicial interference, the defense must address an objection to “the Judge’s general course of action or participation as a whole,” and not merely to “specific questions” or rulings). In short, defendant is mixing up two different questions -- the purported legal error, i.e., relieving the Legal Aid Society as his assigned counsel, and the purported subjective motivation for that error, i.e., the trial judge’s supposed dislike of the Society. Further, even if defendant’s claim could properly be characterized as one that Justice Scherer was biased against the Legal Aid Society, that claim would not survive 7 defendant’s guilty plea. This Court and others have held that other claims involving bias, unfairness or improper participation in a case are forfeited by a guilty plea. For example, this Court has already held that claims of selective and vindictive prosecution are forfeited by a guilty plea. See People v. Rodriguez, 55 N.Y.2d 776 (1981). Further, as the People noted in their main brief, this Court held in People v. Green, 75 N.Y.2d 902 (1990), that a claim that a prosecutor violated Batson v. Kentucky, 476 U.S. 79 (1986) -- i.e., that the People engaged in racial discrimination during jury selection -- is forfeited by a subsequent plea. See Tollett v. Henderson, 411 U.S. 258, 266-68 (1973) (claim of racial discrimination in selecting grand jurors forfeited by a guilty plea). And, intermediate appellate courts have held that a claim that a District Attorney should have been disqualified is also forfeited by a guilty plea. See, e.g., People v. Calvello, 70 A.D.3d 847, 848 (2d Dept. 2010); People v. Reiblein, 200 A.D.2d 281, 283 (3d Dept. 1994). Accordingly, there is no reason why a claim that a judge unfairly disparaged an institutional defender should not similarly be forfeited by a guilty plea. Moreover, general plea forfeiture principles dictate that even the claim defendant now says was before the Appellate Division would be forfeited by his guilty plea. As this Court explained in People v. DiRaffaele, 55 N.Y.2d 234, 240 (1982), a defendant’s guilty plea “renders irrelevant his contention that the criminal proceedings preliminary to trial were infected with impropriety and error; his 8 conviction rests directly on the sufficiency of his plea, not on the legal or constitutional sufficiency of any proceedings which might have led to his conviction after trial.” Similarly, in Tollett, 411 U.S. at 267, the Supreme Court reaffirmed the principle that “a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Here, defendant’s plea “renders irrelevant” his contention that Justice Scherer’s reassignment of the case was “infected” with bias and disparagement of the Legal Aid Society, and was “a break in the chain of events” from Justice Scherer’s prior actions, no matter how defendant characterizes them or attacks her motivation for them. That reasoning especially makes sense here, where Justice McLaughlin, the judge who took defendant’s guilty plea, was not the judge defendant is accusing of this sort of misconduct. Indeed, even if defendant were correct in asserting that Justice Scherer was biased against him, had he raised that claim at the appropriate time, the only relief he would have been granted was the reassignment of his case to a new judge -- which is what occurred in any event. 9 B. Even if this Court were to reach defendant’s choice of counsel claim, it should reject it as meritless. As a preliminary matter, and contrary to defendant’s current assertion (Defendant’s Brief at 21-22, 23, 25), that claim presents a preserved question of law within this Court’s jurisdiction. Indeed, defendant’s arguments on this score are incompatible with the record and the law. To begin, it is significant to note that, before the Appellate Division, the People never argued that any aspect of defendant’s claim regarding the discharge of counsel was unpreserved. Not surprisingly, defendant also never suggested that his claim might be unpreserved but nonetheless should be reached in the interest of justice. Next, defendant is flatly wrong to argue that the Appellate Division reversed his conviction “on the trial court’s violation of his right to counsel of choice,” even though he “only raised an ineffective assistance of counsel claim” in the trial court (Defendant’s Brief at 21). Before Justice Scherer, while the Legal Aid Society certainly insisted that they needed an adjournment to prepare the case, they never termed their claim as one that defendant would be denied effective assistance. More fundamentally, the Legal Aid Society plainly did protest being replaced as counsel. That could be viewed only as a claim that the court was improperly interfering with the attorney-client relationship, not as a claim that defendant would be represented 10 ineffectively. Certainly, the Legal Aid Society did not and could not in good faith have argued that any successor counsel could not represent defendant adequately. Indeed, as already demonstrated (supra at 5), the Appellate Division made clear that its holding was that Justice Scherer interfered with the existing attorney-client relationship and thereby deprived defendant of his counsel of choice. Defendant further mischaracterizes the Appellate Division majority’s decision when he asserts that it found his choice of counsel claim unpreserved, but reversed in the interest of justice (Defendant’s Brief at 21). The Appellate Division majority expressly observed, “that counsel never stated that denying his request infringed on defendant’s right to counsel of choice does not prevent this Court from reviewing the issue. It was abundantly clear by the colloquy that counsel was seeking to protect defendant’s right” (A13-14). Thus, the majority plainly regarded defendant’s choice of counsel claim as preserved, and its reasoning for so concluding was completely consistent with this Court’s current preservation jurisprudence. See People v. Chestnut, 2012 NY Slip Op. 4375, 2012 N.Y. LEXIS 1317, at *8, n.2 (June 7, 2012) (“the preservation rule’s ‘specific objection’ requirement should not be applied in [an] overly technical way . . . nor should a party’s adherence to this requirement focus on minutiae or emphasize form over substance”). The majority merely added that, “[i]n any event,” it could reach an unpreserved claim in the interest of justice (A14). 11 Equally meritless is defendant’s contention that the People’s appellate arguments are not preserved because “[t]he People did not participate in the [court’s] colloquy” with defense counsel concerning relieving the Legal Aid Society (Defendant’s Brief at 26-27). CPL 470.05(2) provides that for purposes of appeal, a “question of law with respect to a ruling or instruction of a criminal court is presented . . . if in response to a protest by a party, the court expressly decided the question raised on appeal.” Here, of course, Justice Scherer expressly granted the Society’s alternative request to be relieved, and explained that she did so rather than grant the requested adjournment because the Society had been dilatory and unprofessional in not reassigning the case promptly, a pervasive problem within the organization. Plainly, the court’s ruling preserved any error of law with respect to the People’s correct argument regarding whether the court could properly relieve the Legal Aid Society. Indeed, if the rule were otherwise, and the People were required to “adopt” Justice Scherer’s “assertions” (Defendant’s Brief at 26-27), what a judge actually ruled could not be a proper legal subject for appeal. That result, of course, makes no sense, and cannot be squared with the language of CPL 470.05(2). Defendant also asserts that the Appellate Division exercised its “discretionary” power in reversing his conviction and, thus, this Court lacks jurisdiction and must dismiss the appeal (Defendant’s Brief at 21, 23-25). To be sure, this Court only has the power to review an Appellate Division determination that the trial court abused 12 its discretion, not an Appellate Division conclusion that the trial court engaged in an “improvident exercise of discretion.” People v. Baker, 64 N.Y.2d 1027 (1985). However, as defendant himself acknowledges, the Appellate Division expressly reversed “on the law” (Defendant’s Brief at 23), rather than as a matter of discretion. While that is not dispositive, see People v. Hinton, 81 N.Y.2d 867 (1993), a review of the majority’s decision confirms that it did reverse on “abuse of discretion” grounds. At the outset of its decision, the Appellate Division majority deliberately framed its holding in terms of an abuse of discretion. Specifically, the majority found that the judge “abuse[d] [her] discretion” and interfered with defendant’s right to counsel by discharging the Legal Aid Society without consulting defendant (A5). To be sure, the Appellate Division subsequently stated that the trial court’s “improvident exercise of discretion reflected a difference in treatment as compared to the People” (A10). However, the Appellate Division majority made that comment concerning the issue of whether the trial court should have granted the requested adjournment, not the issue of whether the trial court erred in then relieving the Legal Aid Society. These are separate issues: obviously, a judge can deny counsel’s requested adjournment without relieving counsel. But even as to the adjournment issue, the Appellate Division later characterized the trial court’s treatment of the Legal Aid Society as “the definition of caprice and arbitrariness” (A12). Such 13 behavior would exceed a mere improvident exercise of discretion and constitute an abuse of discretion. Indeed, the Appellate Division’s reversal cannot realistically be viewed as based on simple disagreement with the trial court’s exercise of discretion regarding defendant’s adjournment request. Rather, the Appellate Division reversal was premised on the trial court’s asserted legal error in relieving the Legal Aid Society. The Appellate Division’s focus was on whether the trial court had interfered with defendant’s right to counsel. As noted, as the outset of its decision, the Appellate Division held that Justice Scherer had interfered with defendant’s right to counsel by relieving the Legal Aid Society (A4). In addition, the court discussed at some length an indigent defendant’s right to continue to be represented by counsel of his own choosing (A8-9). And, immediately following its reference to the trial court’s “improvident exercise of discretion,” the Appellate Division concluded that “the court improperly interfered with an established attorney-client relationship between defendant and the Legal Aid Society” (A11). Finally, the Appellate Division found that the doctrine of harmless error did not apply to “a violation of a defendant’s right to counsel of his own choosing” (A12). Thus, rather than substituting its discretion for that of the trial court regarding the adjournment request, the Appellate Division 14 made the purely legal determination that defendant was deprived of his counsel of choice when the trial judge relieved the Legal Aid Society as his assigned counsel.3 Nor, contrary to defendant’s assertion (Defendant’s Brief at 24), did the Appellate Division’s determination of the choice of counsel issue “rest[ ] on a review of the facts.” Certainly, the Appellate Division majority did not make any determination on a purely factual question that was different than one made by Justice Scherer (or even the dissent). The court also did not state that it “considered” the facts on which the trial court’s judgment was based and had determined those facts “to have been established.” In the absence of such a statement, “it is presumed that [the Appellate Division] did not consider or make any determination with respect to such facts.” CPL 470.25(2)(d); see People v. Henriquez, 68 N.Y.2d 679, 681 (1986); People v. Rickert, 58 N.Y.2d 122, 133 (1983); Karger, Powers of the New York Court of Appeals § 21:10, at 769 (3d ed.). Indeed, the absence of such a declaration further undermines defendant’s characterization of the Appellate Division majority’s decision as a mere substitution of its own discretion for that of the trial court. See Henriquez, 68 N.Y.2d at 681; Rickert, 58 N.Y.2d at 133. 3 Notably, even if, as defendant claims, the issue is whether the trial judge engaged in “disparate and disparaging treatment of the Legal Aid Society” (see Defendant’s Brief at 35), that, too, is a question of law this Court can review. See People v. Yut Wai Tom, 53 N.Y.2d 44, 54-61 (1981) (reversing based on a finding of judicial interference, where the defendant was denied a fair trial by the trial judge’s persistent and improper interference in the examination of witnesses). 15 An examination of several subsidiary issues defendant deems to be disputed questions of fact reinforces the conclusion that the interference with counsel claim is fully reviewable by this Court. For instance, there was no factual dispute as to “which party was responsible for the delays in th[e] case” (Defendant’s Brief at 24-25). Indeed, the dissent acknowledged that there were “delays occasioned by the People” (A17), as the majority had underscored (A5, A10). The dissent merely observed that “there were also delays occasioned by defendant’s counsel” (A17), an assertion the majority did not dispute. Similarly, the dissent did not dispute the majority’s findings regarding delays that occurred after the Legal Aid Society was discharged (see Defendant’s Brief at 25). Rather, the dissent merely argued that the majority had improperly used scheduling delays that arose after new counsel was appointed to “bootstrap its criticism of the court,” and that the question of disparate treatment “must be considered in relation to the circumstances that existed at the time the assigned staff attorney resigned and should not be influenced by subsequent events” (A16-17). Defendant’s belief notwithstanding, that is a legal dispute regarding the relevance of subsequent events, not a factual dispute. Plainly, then, the Appellate Division’s reversal is reviewable because it was on the law, and any facts it considered “but for the determination of law would not have led to reversal . . . .” CPL 450.90(2)(a). 16 C. The People argued in their main brief that Justice Scherer properly relieved the Legal Aid Society as defendant’s assigned counsel when it insisted that it could not proceed without an adjournment, and declared that it should be relieved were the court to deny the requested adjournment. For the most part, little need be added to those arguments. However, it must be stressed that there is no basis for defendant’s allegations that the People were “complicit” in the court’s decision to relieve the Society, and were “less than candid with the court” about the availability of their police witnesses (Defendant’s Brief at 32-33). As to the first claim, defendant complains that ADA Savur said nothing during the court’s colloquy with Legal Aid Society Supervisor Kenneth Ives, even though he knew that the case could not proceed to trial on July 25th as Justice Scherer wished, because he was starting paternity leave on July 21st (Defendant’s Brief at 32). Accordingly, defendant concludes that the District Attorney’s Office was maneuvering to have the Legal Aid Society relieved in order to obtain a harsher plea agreement (Defendant’s Brief at 33). But it is illogical for defendant simultaneously to complain both that the People stood silent and that they were seeking to have the Society removed. This is particularly true given that it was the Legal Aid Society, rather than the People or even the court, that first broached the possibility of relieving the Society in an effort to strong-arm Justice Scherer into granting the 17 adjournment they desired. In other words, defendant should not be heard to blame the People for having been hoisted on his own petard. Moreover, nothing in the record supports defendant’s claim that the Legal Aid Society had been seeking “a more favorable plea bargain” than the one defendant ultimately obtained (Defendant’s Brief at 33) or that the machinations of the prosecutor thwarted their efforts to do so (id.). On the contrary, Justice McLaughlin stated that he was unwilling to impose a prison sentence of less than twenty years to life (A174). Further, neither the court nor the defense asked the People for their view on either granting the requested adjournment or relieving the Society. Importantly, too, the judge was not welcoming of the People’s unsolicited efforts to discuss matters. There were prior instances when the court refused the People’s requests for a sidebar conference (see A44, A53). Most notably, ADA Savur asked to approach the bench twice before the conclusion of the July 10th calendar call, but Justice Scherer rebuffed him both times (A74). Given that refusal, it is of course impossible to know whether the prosecutor was seeking to discuss further scheduling matters. More generally, the judge’s refusal to conduct these bench conferences illustrates that she was testy with both the prosecution and the defense. In that regard, as the People noted in their main brief, the judge roundly castigated ADA Savur when she learned, after the fact, of his paternity leave. Indeed, the language she used to describe his conduct -- “outrageous” and utterly “lack[ing]” in “common 18 sense” (A95) -- was just as harsh as the language she used to upbraid the conduct of the Legal Aid Society (see People’s Main Brief at 10-14). Equally disingenuous is defendant’s complaint that ADA Savur requested “only” a two-week adjournment on July 10th, although he had not yet spoken to Officer O’Neill, who was on sick leave and -- as the People subsequently learned -- would be unavailable to testify until late August (Defendant’s Brief at 33). As the People argued in their main brief, ADA Savur told the court that he had been unable to reach O’Neill, despite various attempts to do so, and, thus, he did not know that she would be unavailable until that time. Accordingly, the court knew all the facts then available, and defendant’s accusation that the People were “less than candid” about these matters (Defendant’s Brief at 33) is baseless and thus indefensible. * * * In sum, by pleading guilty, defendant forfeited his claim that Justice Scherer improperly relieved the Legal Aid Society. In any event, the Appellate Division’s erroneous reversal of his conviction is reviewable by this Court. Finally, defendant’s accusation that the People somehow sought to encourage the court to dismiss the Legal Aid Society is incompatible with the record, and is little more than an effort to distract from the fact that the Society’s own high-handed behavior toward the judge completely backfired. 19 POINT II JUSTICE MCLAUGHLIN PROPERLY DENIED DEFENDANT’S MOTION TO WITHDRAW HIS GUILTY PLEA WITHOUT CONDUCTING A FORMAL HEARING (Answering Defendant’s Brief, Point III). Defendant argued before the Appellate Division that his guilty plea was not voluntary, knowing and intelligent and that the plea court erred by summarily denying his plea withdrawal motion. The Appellate Division majority rejected that claim without discussion.4 The dissent “concur[red] with the majority to the extent it, without discussion, f[ound] that the sentencing court properly denied defendant’s motion to withdraw his plea without a hearing” (A15). On appeal to this Court, defendant renews the argument he raised unsuccessfully before the Appellate Division. That argument is without merit. A. THE PLEA PROCEEDING On October 3 and 4, 2006, Justice Edward J. McLaughlin held a Huntley/Dunaway hearing. At its conclusion, Justice McLaughlin denied defendant’s motions. Thereafter, defense counsel asked the court what sentence it would likely impose if defendant were to plead guilty as charged (A161-62). Counsel added that 4 Specifically, having “reviewed the additional claims raised by appellate counsel as well as those raised in defendant’s pro se supplemental brief,” the majority found them to be “without merit, unpreserved or [ ] premised on allegations of fact outside the record” (A14). 20 defendant wanted to discuss the court’s sentencing recommendation with his family (A162). The court advised defendant that, if he pleaded guilty at that time, it would impose concurrent sentences of twenty-two years to life in prison. The court explained that, if convicted after trial, defendant faced between sixteen and twenty- five years to life for the attempted robbery on September 15, and between twenty and twenty-five years to life for the robbery on September 22, 2006. The court also pointed out that, since the crimes were two separate incidents, defendant could receive consecutive sentences (A163). Justice McLaughlin stated that he would seriously consider imposing such sentences if defendant were convicted after a trial (A164). The judge clarified, “[y]ou should understand me, I’m not promising that I’m going to give you a consecutive sentence, so you better plead. I have no interest whatsoever in your pleading guilty” (A164-65). Indeed, the judge had “no inducement to let th[e] case go away,” since he “could be doing nothing” for several days and “it would drive [him] nuts.” The judge also reminded defendant that he “didn’t bring up plea negotiations or discussions,” but rather that it was defendant who had asked what the court’s sentencing recommendation would be if he were to plead guilty (A165). 21 The court advised defendant that, if he wanted to talk to his family or the lawyer who was representing him in an unrelated case in Brooklyn,5 he could do so. However, the court explained that jury selection would begin the following day and that the court’s offer of twenty-two years to life would expire once the People called their first witness (A165). The matter was then adjourned to the following day (A166). On October 5, 2006, plea discussions resumed. The court asked defendant when he next expected to have access to the phone. Defendant responded, “[E]very Sunday” (A167). The court noted that defendant understood his sentencing “exposure,” which was “roughly forty to life,” and that defendant was being offered a sentence of twenty-two years to life in prison (A167-68). The court further observed that, by asking what sentence the court would impose if he pleaded guilty as charged, defendant “obvious[ly] recogni[zed]” that he was “going to be found guilty” (A168- 70). The judge acknowledged telling defendant that he could speak to his mother. However, he observed that, as a 31-year old “functioning adult,” defendant was 5 In November 2005, defendant was indicted by a Kings County grand jury for multiple counts of robbery, grand larceny and petit larceny (Kings Co. Indt. No. 7658/05). Subsequent to plea and sentencing in this case, he pleaded guilty to attempted first-degree robbery and was sentenced to an indeterminate prison term of from sixteen years to life. See NYSID Sheet. 22 capable of making a decision of importance on his own (A170-71). The court reminded defendant, “We’re talking about twenty-two versus a lot more than that,” and contrasted a “functioning Anthony Griffin” with a “decrepi[t], nonfunctioning human being.” The court then reduced its offer, promising defendant that, if he pleaded guilty that day, he would be sentenced to twenty years to life in prison (A171- 72). However, if defendant waited until a jury had been selected, the offer would revert to twenty-two years to life (A172). The court said that it would allow defendant about five minutes to confer with counsel, before the jury would be brought into the courtroom. Justice McLaughlin then received a phone call from Justice Goldberg, the judge presiding over defendant’s case in Brooklyn. Defendant and counsel conferred (A173). At counsel’s request, the court also allowed defendant to confer with the prosecutor (A173-74). The judge left the courtroom, and defendant and the prosecutor apparently conferred in defense counsel’s presence. Following that discussion, defendant and counsel once again conferred (A174). Upon his return to the courtroom, the judge advised defendant that he would not “go[ ] lower than twenty” and that the court’s offer would revert to twenty-two years to life once jury selection commenced (A174). The court further observed that “[t]his [wa]s not a surprise,” that defendant had “thought about this,” and that the need to make this decision had “been around a 23 while.” The court then asked defendant whether or not he was accepting its offer. After conferring yet a third time with defendant, counsel advised the court that there was a disposition (A175). Defendant then pleaded guilty to Attempted Robbery in the First Degree and Robbery in the First Degree, in full satisfaction of the indictment. With respect to the first count, defendant admitted that, on September 15, 2005, he attempted to forcibly steal property from a Starbucks employee while displaying what appeared to be a pistol. With respect to the second count, defendant admitted that, on September 22, 2005, he stole money from a Starbucks employee while displaying what appeared to be a pistol (A176). Defendant affirmed his understanding that a guilty plea had the same effect as if he were found guilty after a jury trial. Defendant also understood that, by pleading guilty, he was giving up his rights to a trial, to cross-examine witnesses against him, to testify or remain silent, and to have his guilt proved beyond a reasonable doubt (A177-78). The court reiterated that, had defendant been convicted after a trial, he could have received consecutive prison sentences of between sixteen and twenty-five years to life for the attempted robbery and between twenty and twenty-five years to life for the completed robbery (A178). However, since defendant pleaded guilty at that time, the court promised to sentence him to concurrent sentences of twenty years to life. 24 The court asked defendant if he understood that, and defendant responded that he did. Justice McLaughlin advised defendant that he had spoken to Justice Goldberg, who had agreed to impose a concurrent sentence in the Brooklyn case. The court asked defendant if he understood “that part of the promise as well,” and defendant said that he did (A179). Defendant acknowledged that he had discussed the plea agreement with counsel that day and “on other days.” Defendant advised the court that he was pleading guilty because he was, in fact, guilty. Defendant further averred that he was not under the influence of any drugs or alcohol. Finally, defendant represented that what he had told the court during his plea allocution was true. The court then asked defendant, “[I]f you were to tell me or some other Judge something different in the future[,] different from what you’re saying today, that future statement would not be true because you’ve told me the truth today. Am I correct?” Defendant responded, “Yes” (A180). The court then found that, on January 31, 1995, defendant had been convicted of the violent felony of Robbery in the Second Degree in Kings County Supreme Court. The court further found that, on December 3, 1997, defendant had been convicted of the violent felony of Attempted Robbery in the Second Degree, also in Kings County Supreme Court. Without objection, the court adjudicated defendant a mandatory persistent violent felony offender (A181-87). 25 DEFENDANT’S PLEA WITHDRAWAL MOTION AND THE SENTENCING PROCEEDING By papers dated October 17, 2006, defendant filed a pro se motion to withdraw his guilty plea. Defendant claimed that he did not understand the court’s instructions “as to certain elements of his legal rights.” Defendant further claimed that he was innocent, that “inducing plea was mistake” [sic], that his attorney asserted no defense on his behalf, and that the trial court was “biased.” Finally, defendant claimed that he was “unaware of the consequences of his plea” and “of the fact that he had a good meritorious defense” (A195). On October 19, 2006, defendant appeared before Justice McLaughlin for sentencing. The People relied on the promised prison sentence of twenty years to life (A189). After asking defense counsel if there was “[a]nything from the defense,” the judge advised defendant, “[Y]ou can say anything relevant but there is a promise that I’m going to impose” (A189). Counsel responded, “the defendant has asked me to inform your Honor that he would like to take his plea back.” The court asked what the legal justification was for the motion, and counsel responded that defendant felt he was “under duress” when he decided to take the plea. The court asked, “Duress in what sense, who or under what circumstances?” Counsel explained that defendant thought that he had not had enough time to consider the plea, and had been placed in that position by both counsel and the court (A190). 26 The court found that there was no legal or factual basis for withdrawing defendant’s plea (A192). The court reasoned that defendant “had overnight to think about” an offer of twenty-two years to life (A190). The following day, the court offered defendant two fewer years, i.e., a prison sentence of twenty years to life. The judge had a “distinct memory” of watching defendant and counsel confer. After the judge and the prosecutor left the area, defendant accepted the court’s offer. Given his criminal history and the evidence in the case, the court concluded, defendant understood that he was saving himself between ten and fifteen years in prison “from what he reasonably could have expected had he been found guilty after the jury considered the evidence.” Moreover, the court stressed, defendant admitted his guilt in both robberies. He told the court that he was pleading guilty voluntarily because he had committed those crimes (A191). Defendant had also admitted to the court that, if he were to say something different in the future, either to Justice McLaughlin or to another judge, that “would be a lie,” because he was telling Justice McLaughlin the truth at the plea proceeding (A191-92). The court recognized that defendant undoubtedly was “scared about spending the next 20 years of [his] life in prison.” However, the court explained that the fact that defendant was “somewhat fearful” did not provide a basis for withdrawing his plea. Accordingly, the court denied defendant’s motion and imposed the promised concurrent sentences of from twenty years to life (A192). 27 B. On appeal, defendant claims that the court erred by summarily denying his motion to withdraw his guilty plea (Defendant’s Brief at 37, 41-42). It is well settled that a sentencing court is afforded discretion in determining whether to allow a defendant to withdraw his guilty plea. See CPL 220.60(3); People v. Seeber, 4 N.Y.3d 780, 780 (2005) (quoting People v. Alexander, 97 N.Y.2d 482, 485 [2002]). The nature and extent of the fact-finding inquiry is also a matter primarily entrusted to the court’s discretion. People v. Brown, 14 N.Y.3d 113, 116 (2010); People v. Baret, 11 N.Y.3d 31, 33 (2008); People v. Tinsley, 35 N.Y.2d 926, 927 (1974). These discretionary determinations are not amenable to this Court’s review, unless it can be said that the lower court abused its discretion as a matter of law. See Alexander, 97 N.Y.2d at 485; People v. Feliciano, 53 N.Y.2d 645 (1981); see generally People v. Patterson, 93 N.Y.2d 80, 84 (1999); People v. Smith, 59 N.Y.2d 156, 167-68 (1983); People v. Lane, 56 N.Y.2d 1, 8 (1982). Here, since the sentencing court did not abuse its discretion as a matter of law, defendant’s arguments provide no basis for reversal. In fact, the sentencing court’s rejection of defendant’s motion constituted a wholly appropriate exercise of discretion. To begin, no formal hearing on a plea withdrawal motion is necessary. The trial court need only ensure that the defendant has a “reasonable opportunity” to advance his claims, so that “an informed and prudent determination” of the motion 28 can be made. People v. Frederick, 45 N.Y.2d 520, 524-25 (1978); see also People v. Fiumefreddo, 82 N.Y.2d, 536, 543-44 (1993); Tinsley, 35 N.Y.2d at 927. “Only in the rare instance will a defendant be entitled to an evidentiary hearing; often a limited interrogation by the court will suffice.” Frederick, 45 N.Y.2d at 525 (quoting Tinsley, 35 N.Y.2d at 927 [internal quotation marks and punctuation omitted]); see Brown, 14 N.Y.3d at 116; Fiumefreddo, 82 N.Y.2d at 544. In particular, a court deciding a plea withdrawal motion may summarily resolve credibility issues against the defendant. Alexander, 97 N.Y.2d at 487. Moreover, a guilty plea will be upheld as valid if it was entered “voluntarily, knowingly, and intelligently.” People v. Haffiz, 2012 N.Y. Slip Op. 4376, *2, 2012 N.Y. LEXIS 1312, *2 (June 7, 2012) (quoting Fiumefreddo, 82 N.Y.2d at 543). The voluntariness of a guilty plea is determined by reference to the totality of the circumstances surrounding it. See Brown, 14 N.Y.3d at 118-19. Among the relevant factors in the analysis are the extent of the court’s discourse with the defendant; the defendant’s admission of guilt and acknowledgment of the crime; the experience of defendant’s counsel and counsel’s level of participation in the proceedings; the defendant’s prior involvement with the criminal justice system; and the rationality of the plea bargain -- that is, whether the defendant received a benefit as a result of his plea. See, e.g., People v. Goldstein, 12 N.Y.3d 295, 301 (2009); People v. Harris, 61 N.Y.2d 9, 20 (1983); People v. Nixon, 21 N.Y.2d 338, 353 (1967). 29 Judged by these standards, the court’s inquiry into defendant’s plea withdrawal motion was more than sufficient to warrant denial of the motion without a formal hearing. Just two days before sentencing, defendant moved to withdraw his guilty plea pursuant to CPL 220.60. In particular, he drafted a pro forma, boilerplate motion in which he claimed that he did not understand the court’s instructions “as to certain elements of his legal rights,” he was innocent, his plea was induced, his counsel was ineffective, and the trial court was biased. He never specified, for example, what legal rights he did not understand or what defense he thought he could mount to the charges. Thus, it is absurd for defendant to assert that he presented “specific and detailed assertions” (Defendant’s Brief at 42). Similarly, at sentencing, defendant simply asserted that his plea was the result of coercion on the part of counsel and the court. Indeed, notwithstanding the court’s invitation at the beginning of the proceedings to defendant himself to “say anything relevant” (A189), defendant spoke though counsel rather that addressing the court directly. And counsel did not elaborate, or make any specific factual claims in support of that claim, other than to say that defendant thought he was rushed into deciding to plead guilty. Nor did defendant mention, let alone expand upon, the other bald allegations in his motion papers. Conclusory claims of innocence, coercion and ineffective assistance may be summarily rejected, especially where, as here, the defendant had an opportunity to 30 advance his claims in writing and to address the court prior to sentencing. See Baret, 11 N.Y.3d at 33-34 (plea withdrawal motion properly denied without a hearing where, inter alia, the defendant’s allegations of coercion advanced in an affidavit were ambiguous, vague and lacking in specificity); see also, e.g., People v. Dixon, 29 N.Y.2d 55 (1971); People v. Gaskin, 2 A.D.3d 347 (1st Dept. 2003); People v. Wyant, 47 A.D.3d 1068 (3d Dept. 2008); People v. Williams, 206 A.D.2d 398, (2d Dept. 1994). And this was precisely the sort of case where a defendant’s effort to escape the consequences of his plea could be disposed of promptly. To begin, defendant’s conclusory and unsupported claim of innocence was utterly refuted by the record. After all, rather than contesting his guilt at the plea allocution, defendant freely admitted that he attempted to rob a Starbucks employee on September 15 and that he robbed a Starbucks employee on September 22, 2006. Significantly, as the judge stressed in denying the plea withdrawal motion (A191-92), defendant explicitly averred that any future statement he might make to the contrary would be false (A180). Of course, having presided over the proceeding, Justice McLaughlin was in a unique position to observe and draw conclusions from defendant’s demeanor when he professed that he was telling the truth. That defendant’s bald assertion of innocence was belied by his own sworn statements before Justice McLaughlin further warranted the summary denial of his plea withdrawal motion. See, e.g., Dixon, 29 N.Y.2d at 56-57; People v. Keith, 26 A.D.3d 31 879 (4th Dept. 2006); People v. Cepeda, 29 A.D.3d 491 (1st Dept. 2006); People v. Kessler, 5 A.D.3d 504 (2d Dept. 2004). Furthermore, Justice McLaughlin’s thorough allocution of defendant confirmed that his decision to plead guilty was informed and voluntary. Not only, as noted, did defendant readily profess his guilt, but the court reviewed each of the various rights defendant would have been afforded at trial, and defendant acknowledged that he understood he was giving up those rights by pleading guilty (A177-78). The court also reviewed with defendant the terms of the plea agreement, which defendant confirmed he understood (A179). The record further showed that, before accepting the plea, defendant conferred with counsel at three separate junctures (A173, 174, 175). Moreover, during the plea allocution, defendant asserted that he had discussed his rights and options with counsel, both that day and on other occasions (A180). No wonder, then, that in his written motion, defendant did not try to specify which legal rights he did not understand. Additionally, defendant was “no novice to the criminal justice system.” Goldstein, 12 N.Y.3d at 301. On the contrary, his criminal history spanned more than ten years and included three felony convictions -- 1997 convictions for second- degree attempted robbery and second-degree attempted assault and a 1995 conviction for second-degree robbery. Further, each of those prior convictions had resulted from a guilty plea (see NYSID Sheet). Defendant’s intimate knowledge of the 32 procedures involved in guilty pleas further evinced the knowing and intelligent nature of his plea. See People v. Miller, 42 N.Y.2d 946, 947 (1977). Finally, as the court also emphasized (A191), the favorable terms of the plea agreement defendant received demonstrated that he entered the plea voluntarily. First, as a mandatory persistent violent felony offender, defendant was facing maximum prison terms of from twenty-five years to life for both the attempted armed robbery on September 15th and the completed armed robbery on September 22nd. See Penal Law §§ 70.08(2) and (3). Furthermore, as the court explained to defendant (A163-64, A178-79), because those crimes were committed seven days apart, the sentences he could receive if convicted of both could be ordered to run consecutively with each other. Nevertheless, defendant was offered concurrent sentences of twenty years to life -- in addition to the promise of a concurrent sentence in the Brooklyn case, secured by discussions between Justice McLaughlin and the Brooklyn judge (A179). The fair inference to be drawn from this favorable resolution is that defendant’s decision to plead guilty was the result of a rational and voluntary choice. See People v. Champagne, 72 A.D.3d 557 (1st Dept. 2010); People v. Fifield, 24 A.D.3d 1221 (4th Dept. 2005); People v. Clough, 306 A.D.2d 556 (3d Dept. 2003); People v. Rogers, 163 A.D.2d 337 (2d Dept. 1990). Thus, there is no reason to second-guess the judge’s conclusion that defendant’s plea withdrawal motion was meritless, and nothing more than an effort 33 by a defendant fearful of prison to avoid the consequences of a valid plea (A192). Nevertheless, defendant now claims that the summary denial of his plea withdrawal motion violated his due process rights. Defendant further claims that the court created a “coercive atmosphere” that induced his guilty plea. In particular, defendant asserts that the court painted a “gloomy future for [him] if he did not plead guilty,” expressed its belief in his guilt and threatened to impose a “far greater sentence” after trial (Defendant’s Brief at 39, 42). Defendant also complains that the court did not let him consult with his family, offered a “one-time sentence discount,” and allowed him only five minutes to decide whether or not to accept the plea, before issuing a “plea ultimatum” (Defendant’s Brief at 40, 42). As an initial matter, defendant raises many of his complaints for the first time on appeal. Specifically, at the trial level, defendant never argued that the court should have conducted an evidentiary hearing, let alone that the summary denial of his motion violated his state or federal constitutional rights to due process rights. Nor did defendant identify specific statements or behavior on the part of the court that created what he now dubs a “coercive atmosphere.” Rather, defendant made only the conclusory assertion that his plea was the product of duress by the court and his attorney because they did not give him sufficient time to consider the plea. Finally, defendant never complained that he could not confer with his family or that the court reduced its plea offer. Consequently, by not raising the other specific arguments that 34 he now advances on appeal, defendant has failed to preserve those arguments for appellate review, rendering them unreviewable before this Court. See People v. Mackey, 77 N.Y.2d 846, 847 (1991). In any case, all of defendant’s arguments fail on the merits. To begin, while defendant complains that “the court did not even afford [him] an opportunity to speak before it summarily denied [his] plea withdrawal” motion (Defendant’s Brief at 37), that newly-minted claim is false. At the very start of the sentencing proceeding, the court advised defendant that he could say “anything relevant” (A189). Counsel responded that defendant had asked him to inform the court that defendant “would like to take his plea back.” Rather than refusing to consider the application, as defendant suggests, the court asked counsel, “What is his legal reasoning or justification for that?” When counsel responded that defendant felt he was under duress, the court asked, “Duress in what sense, from whom or under what circumstances?” (A190). The court then listened to counsel’s response, and only when counsel had finished did the court issue its ruling denying defendant’s motion. Moreover, defendant never requested an evidentiary hearing or any other opportunity to supplement his pro se motion or counsel’s remarks. Thus, it makes no sense for defendant to attack the procedures the court used in denying his motion. Defendant fares no better in discussing the substance of the plea proceedings and his motion. Defendant complains that the court created a coercive atmosphere 35 by “graphic[ally] descri[bing] [ ] the misery of [his] life if he did not plead guilty” (Defendant’s Brief at 42). To be sure, in distinguishing between the sentence under the plea offer and the sentence that defendant faced if convicted after trial, the court contrasted a “functioning Anthony Griffin” with a “decrepi[t], nonfunctioning human being” (A171). However, contrary to defendant’s assertion (see Defendant’s Brief at 42), there was nothing coercive about this remark. Albeit in stark terms, the court was simply explaining defendant’s severe sentencing exposure in the event that he was convicted after a trial. It is well established that information of this nature is not coercion and is entirely proper. See, e.g., People v. Taylor, 82 A.D.3d 1291 (3d Dept. 2011); People v Bravo, 72 A.D.3d 697 (2d Dept. 2010); People v. Garcia, 37 A.D.3d 355 (1st Dept. 2007). Indeed, advising a defendant of his sentencing exposure advances, rather than detracts from, the goal of insuring that a plea is intelligently and knowingly made. And, since, as noted, defendant faced consecutive sentences with a maximum aggregate prison term of 40 years to life, the court was warranted in advising defendant, who was just shy of his 31st birthday, that he might well be an old man by the time he was eligible for release from prison. Moreover, contrary to defendant’s assertion (see Defendant’s Brief at 39, 42), the court never threatened to impose a harsher or additional sentence if defendant did not accept the plea offer. In explaining defendant’s possible sentencing exposure, the court told defendant that he faced a minimum sentence of sixteen years to life 36 and a maximum sentence of twenty-five years to life on the attempted robbery count. Similarly, the court advised defendant that he faced a minimum sentence of twenty years to life and a maximum sentence of twenty-five years to life on the robbery count. The court then explained that defendant could receive consecutive sentences since the crimes were separate incidents that occurred on different days (A163). While Justice McLaughlin stated that he would seriously consider imposing consecutive sentences if defendant was convicted after trial, he expressly advised defendant, “[Y]ou should understand me, I’m not promising that I’m going to give you a consecutive sentence, so you better plead. I have no interest whatsoever in your pleading guilty” (A164-65). Indeed, the judge went on to say that he had “no inducement to” compel defendant to plead guilty (A165). Thus, the court never indicated what precise sentence it might impose if defendant were convicted after trial. All that is apparent from the record is that Justice McLaughlin presented defendant with a realistic view of his options and took pains, as evidenced by a proper allocution, to guarantee that defendant had a full understanding of the plea and its consequences. Equally unavailing is defendant’s claim that the court induced his guilty plea by expressing its “personal . . . belief in [his] guilt” (Defendant’s Brief at 42). To be sure, Justice McLaughlin observed that, by asking what sentence defendant would receive if he pleaded guilty, defendant displayed “an obvious recognition” that he was “going 37 to be found guilty” (A168). Of course, that was a completely reasonable interpretation of defendant’s question. Indeed, as Justice McLaughlin aptly observed, no one who was innocent would consider a plea offer that required him to serve a minimum of twenty-two years in prison (A168). And, to the extent that Justice McLaughlin was offering his opinion about the strength of the evidence, there was nothing coercive about his remarks. See, e.g., People v Resto-Perez, 82 A.D.3d 532, 532 (1st Dept. 2011) (“[T]there was nothing coercive, biased or otherwise improper about the court's exploration of ‘the strength of the People’s case, the potential sentence to which defendant was exposed under the indictment, and the favorableness of the plea bargain’”); People v. Mason, 56 A.D.3d 1201 (4th Dept. 2008) (plea not coerced where the court, “while impressing upon defendant the strength of the People’s case, the potential sentence to which defendant was exposed under the indictment[s], and the favorableness of the plea bargain, reiterated throughout the colloquy that the decision to either plead guilty or go to trial remained with the defendant”) (internal quotation marks omitted). Next, defendant complains that, despite its “earlier assurance that [he] could consult his family” before deciding whether or not to take the plea, “the court removed that consideration on the date he pled guilty” (Defendant’s Brief at 42). This claim is unavailing. Before the proceedings concluded on October 4, 2006, the court advised defendant that, if he “want[ed] to talk with [his] family” that night, he 38 could do so. The following day, the court asked defendant if it was the case that he could only make phone calls at certain times, and defendant responded that it was. The court then asked defendant when he next expected to have phone access, and defendant responded that would be the following Sunday. While acknowledging having told defendant that he could speak to his mother, the court also recognized that defendant was a thirty-one-year-old adult who was capable of making important decisions on his own (A170-71). That assessment was entirely appropriate. After all, not only was defendant a grown man, but he was a two-time violent felon whose prior convictions had resulted from guilty pleas. Moreover, defendant did not complain when the court then sought to proceed the next day. In any event, defendant had ample opportunity to confer with his attorney -- and did so at three separate junctures -- before accepting the plea offer (A173, 174, 175).6 And, of course, a favorable plea was entered after a thorough allocution, during which defendant freely admitted his guilt. Thus, it can hardly be said that the plea was coerced simply because the court did not sua sponte adjourn the proceedings until this adult recidivist defendant had spoken to his mother. Similarly, that the court reduced its offer from twenty-two years to life to twenty years to life were defendant to plead guilty that day by no means indicates that 6 Indeed, Justice McLaughlin even granted defendant’s request to confer with the prosecutor, and apparently left the courtroom to accommodate that request (A174). 39 defendant’s guilty plea was coerced (see Defendant’s Brief at 42). On the contrary, that defendant received a two-year bonus on an already lenient offer further evinced that his decision to plead guilty was a voluntary and intelligent one. The heart of defendant’s claim is that it is coercive for a court to offer a defendant a better deal in exchange for his guilty plea. However, all guilty pleas are premised on the notion that a defendant will be afforded lenient treatment if he spares the State the time and expense of a trial. Moreover, that the court reduced its offer by two years to encourage a disposition that defendant was already carefully considering, rather than protract the proceedings, was only beneficial to defendant. Further, defendant’s complaint that he had a “mere five minutes” to decide whether to accept the court’s plea offer (Defendant’s Brief at 42) is thoroughly misleading. True, the court gave defendant “five minutes” to consider the discounted offer the court made -- twenty years to life rather than the twenty-two years the court had offered the day before. However, as the court observed in its oral decision, plea discussions began on October 4, 2006, and defendant was given until the following day to decide whether he wished to take the plea (A190). More importantly, plea discussions had been ongoing for some time. Indeed, as defendant himself now stresses (Defendant’s Brief at 33), at arraignment, the People recommended a sentence of twenty years to life on a plea to the charge (A26). Accordingly, defendant 40 had “ample opportunity to consider” whether to accept the plea. People v. Guy, 63 A.D.3d 609, 610 (1st Dept. 2009); People v. Tuttle, 141 A.D.2d 584 (2d Dept. 1988). Additionally, contrary to defendant’s appellate contention (Defendant’s Brief at 41), the court had no obligation to appoint a new attorney for the purpose of arguing defendant’s plea withdrawal motion. As noted, in his written submission, defendant made only conclusory assertions of duress and ineffective assistance, among other unspecified claims. And, at the plea proceeding, defendant did not avail himself of the opportunity to expand upon those claims, or even to address the court directly. Rather, speaking through counsel, defendant simply asserted that his guilty plea was the product of duress by his attorney and the court because he supposedly did not have enough time to consider the plea A plea withdrawal motion may be denied without appointment of new counsel where, as here, the claims of attorney misconduct are conclusory and without merit. See United States v. Contractor, 926 F.2d 128, 134 (2d Cir. 1991); People v. Trombley, 91 A.D.3d 1197, 1202 (3d Dept. 2012); People v. Fiallo, 6 A.D.3d 176 (1st Dept. 2004); People v. Potter, 294 A.D.2d 603, 604 (2d Dept. 2002). The rule could not be otherwise, lest a defendant be able to force substitution of counsel simply by hurling baseless accusations at his attorney. As for defendant’s claim that the court failed to acknowledge his pro se motion to relieve assigned counsel (Defendant’s Brief at 41), there is nothing in the record to indicate that defendant ever filed such a motion with the court. The court file does 41 not contain a copy of the motion, which the People received from appellate defense counsel, and no mention of that application was made -- by defendant, either of the lawyers, or the court -- at sentencing. In any event, in that motion, defendant merely claimed that counsel had failed to inform him of “pertinent motions made,” conduct an investigation or “make any bail requests or reduction applications” (A199). Defendant further claimed that counsel had failed to confer with him or prepare for trial (A199-200). Where a defendant fails to make a showing of “good cause” for substitution, a court has no obligation to inquire further and may summarily deny the request for new counsel. See People v. Beriguette, 84 N.Y.2d 978, 980 (1994). This conclusory motion was precisely the kind of substitution motion amenable to summary rejection. Finally, defendant’s reliance on People v. Brown, 14 N.Y.3d 113 (2010) (Defendant’s Brief at 38), is misplaced. In Brown, the plea bargain was conditioned on the defendant being granted a brief release to visit his son, who was hospitalized with serious injuries. In finding that the trial court abused its discretion by not holding a hearing on his plea withdrawal motion, this Court found, inter alia, that “there [wa]s no indication on the record that the specific terms of th[e] plea were subject to extended discussion or that defendant had sufficient time to consider the alternatives to taking it.” 14 N.Y.3d at 117. The Court further underscored that the defendant had “provided detailed allegations explaining the duress that he 42 experienced based on his fear that his son might not survive,” but the trial judge had failed to consider those allegations Id. In stark contrast to the furlough to visit a seriously injured child in Brown, here defendant merely conclusorily asserted that his guilty plea was “induc[ed]” (A105). And, while counsel represented that defendant had pleaded guilty “under duress,” when asked to elaborate by the court, he added only that defendant thought he was rushed into pleading guilty (A190). Moreover, the court reviewed with defendant the terms of the plea agreement, which defendant confirmed he understood (A179). The record further showed that defendant had ample time to decide whether to accept the plea, and that he conferred with counsel several times before ultimately doing so (A173, 174, 175). Therefore, contrary to defendant’s suggestion, Brown in no way mandates reversal in this case. * * * In sum, contrary to defendant’s largely unpreserved claims, defendant’s guilty plea was voluntary, knowing and intelligent, and Justice McLaughlin acted well within his discretion in summarily denying defendant’s plea withdrawal motion. 43 CONCLUSION The order of the Appellate Division should be reversed and the judgment of conviction should be reinstated. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County danyappeals@dany.nyc.gov BY: SHEILA O’SHEA Assistant District Attorney Of Counsel ALAN GADLIN SHEILA O’SHEA Assistant District Attorneys Of Counsel August 30, 2012