NOWLIN, QUINTIN A., PEOPLE v ( 2016 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    958
    KA 11-01423
    PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    QUINTIN A. NOWLIN, DEFENDANT-APPELLANT.
    (APPEAL NO. 1.)
    THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    QUINTIN A. NOWLIN, DEFENDANT-APPELLANT PRO SE.
    SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
    COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Monroe County Court (Patricia D.
    Marks, J.), rendered October 15, 2010. The judgment convicted
    defendant, upon his plea of guilty, of criminal possession of a
    controlled substance in the third degree.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously affirmed.
    Memorandum: In appeal No. 1, defendant appeals from a judgment
    of Monroe County Court (Marks, J.) convicting him upon his plea of
    guilty of criminal possession of a controlled substance in the third
    degree (Penal Law § 220.16 [12]) and, in appeal No. 2, he appeals from
    a decision and order of the same court (Argento, J.), which denied his
    CPL article 440 motion to vacate the judgment of conviction in appeal
    No. 1. In appeal No. 3, defendant appeals from another judgment of
    the same court (Piampiano, J.), convicting him upon a jury verdict of
    criminal possession of a controlled substance in the third degree
    (§ 220.16 [1]), and criminal possession of a controlled substance in
    the fourth degree (§ 220.09 [1]).
    In appeal No. 1, defendant contends in his pro se supplemental
    brief that the court erred in failing to conduct a sufficient inquiry
    pursuant to People v Outley (80 NY2d 702) into his violation of the
    conditions of the plea agreement and drug treatment court contract
    before imposing an enhanced sentence (see People v Goree, 107 AD3d
    1568, 1568, lv denied 21 NY3d 1074; see generally People v Scott, 101
    AD3d 1773, 1774-1775, lv denied 21 NY3d 1019). Defendant failed to
    preserve that contention for our review (see CPL 470.05 [2]). In any
    event, defense counsel conceded that defendant had been rearrested in
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    KA 11-01423
    violation of the conditions of his plea agreement, and thus the court
    had no duty to conduct a further inquiry (see People v Harris, 197
    AD2d 930, 930, lv denied 82 NY2d 850). Defendant further contends in
    his pro se supplemental brief with respect to appeal No. 1 that the
    court erred in terminating his drug court placement because the drug
    court contract did not contain a no-rearrest clause. That contention,
    however, is belied by the drug court contract in the record before us.
    With respect to appeal No. 2, we reject defendant’s contention in
    his pro se supplemental brief that the court erred in denying without
    a hearing his motion pursuant to CPL article 440. In that motion,
    defendant contended that trial counsel in appeal No. 1 was ineffective
    in failing to challenge the court’s determination that defendant
    violated the conditions of his drug court contract. That contention,
    however, is based on defendant’s contention that there was no clause
    in the drug court contract prohibiting rearrest, which, as noted
    above, is belied by the record. The court therefore had discretion to
    deny the motion pursuant to CPL 440.30 (4) (d), because “the
    allegations essential to support the motion are contradicted by the
    record and there is no reasonable possibility that they are true”
    (People v Bonilla, 6 AD3d 1059, 1061; see People v Crenshaw, 34 AD3d
    1315, 1316, lv denied 8 NY3d 879).
    With respect to appeal No. 3, defendant contends in his main
    brief that the part of the judgment convicting him of criminal
    possession of a controlled substance in the third degree is not
    supported by legally sufficient evidence that he intended to sell the
    cocaine, and that the verdict is contrary to the weight of the
    evidence for the same reason. Initially, we reject the contention of
    the People that defendant failed to preserve that contention for our
    review, and we conclude that defendant incorrectly concedes this issue
    on appeal. The Court of Appeals has “held that where[, as here,] the
    trial court reserves decision on a defendant’s motion to dismiss, the
    preservation rules do not bar review of defendant’s claim” that the
    evidence is legally insufficient (People v Nicholson, 26 NY3d 813,
    830; see People v Payne, 3 NY3d 266, 273, rearg denied 3 NY3d 767;
    People v Ubbink, 120 AD3d 1574, 1574-1575; People v Evans, 59 AD3d
    1127, 1127, lv denied 12 NY3d 815).
    Nevertheless, we conclude that the evidence is legally sufficient
    to establish defendant’s intent to sell the drugs (see People v King,
    137 AD3d 1572, 1573-1574, lv denied 27 NY3d 1134; see generally People
    v Bleakley, 69 NY2d 490, 495). Furthermore, with respect to
    defendant’s contention that the verdict under both counts of the
    indictment is contrary to the weight of the evidence, viewing the
    elements of the crimes as charged to the jury (see People v Danielson,
    9 NY3d 342, 349), we further conclude that the verdict is not against
    the weight of the evidence (see People v Freeman, 28 AD3d 1161, 1162,
    lv denied 7 NY3d 788; see generally Bleakley, 69 NY2d at 495).
    With respect to appeal No. 3, defendant further contends in his
    main brief that the court erred in its Sandoval ruling. “By failing
    to object to the court’s ultimate Sandoval ruling, defendant failed to
    preserve that contention for our review” (People v Poole, 79 AD3d
    -3-                           958
    KA 11-01423
    1685, 1685, lv denied 16 NY3d 862; see People v Taylor, 140 AD3d 1738,
    1739; People v Kelly, 134 AD3d 1571, 1572, lv denied 27 NY3d 1070).
    In any event, any error in the court’s Sandoval ruling is harmless
    inasmuch as the evidence of defendant’s guilt is overwhelming, and
    there is no significant probability that defendant would have been
    acquitted but for the error (see People v Arnold, 298 AD2d 895, 896,
    lv denied 99 NY2d 580; see generally People v Grant, 7 NY3d 421,
    424-425).
    With respect to appeal No. 3, defendant also contends in his main
    brief that he was denied effective assistance of counsel because his
    attorney failed to request a lesser included offense with respect to
    the first count of the indictment. It is well settled that, in order
    “[t]o prevail on a claim of ineffective assistance of counsel, it is
    incumbent on defendant to demonstrate the absence of strategic or
    other legitimate explanations” for defense counsel’s allegedly
    deficient conduct (People v Rivera, 71 NY2d 705, 709; see People v
    Benevento, 91 NY2d 708, 712; People v Schumaker, 136 AD3d 1369, 1372,
    lv denied 27 NY3d 1075, reconsideration denied 28 NY3d 974), and
    defendant failed to make such a showing here. Indeed, we note that
    counsel explained his strategy on the record when he declined to
    request the lesser included offense at issue, and thus defendant’s
    current contention is no more than a mere “disagreement with trial
    strategy, which does not constitute ineffective assistance of counsel”
    (People v Cheatom, 295 AD2d 959, 960, lv denied 98 NY2d 729; see
    People v Flores, 84 NY2d 184, 187; Rivera, 71 NY2d at 708-709).
    In his main and pro se supplemental briefs, defendant makes
    further claims of ineffective assistance of counsel in all three
    appeals. We conclude with respect to all of defendant’s claims of
    alleged ineffective assistance of counsel that the evidence, the law,
    and the circumstances of this case, viewed in totality and as of the
    time of the representation, establish that defendant received
    meaningful representation (see generally People v Baldi, 54 NY2d 137,
    147).
    Defendant also contends in his main brief that the court punished
    him for exercising his right to trial in appeal No. 3. Contrary to
    the People’s contention, “the record establishes that this issue is
    preserved for our review; the court ‘was aware of, and expressly
    decided, the [issue] raised on appeal’ ” (People v Collins, 106 AD3d
    1544, 1546, lv denied 21 NY3d 1072, quoting People v Hawkins, 11 NY3d
    484, 493). Nevertheless, we conclude that the sentence does not
    constitute a punishment for defendant’s exercise of his right to go to
    trial. “ ‘Given that the quid pro quo of the bargaining process will
    almost necessarily involve offers to moderate sentences that
    ordinarily would be greater . . . it is . . . to be anticipated that
    sentences handed out after trial may be more severe than those
    proposed in connection with a plea’ ” (People v Smith, 21 AD3d 1277,
    1278, lv denied 7 NY3d 763, quoting People v Pena, 50 NY2d 400, 412,
    rearg denied 51 NY2d 770). We take particular note that the court
    specifically stated that it was not punishing defendant for exercising
    his right to go to trial. In addition, “although the appeal by
    defendant from the judgment convicting him of the predicate conviction
    -4-                           958
    KA 11-01423
    upon which his adjudication as a second felony offender is based
    remain[ed] pending [at the time of sentencing],” we nevertheless
    reject his contention in his pro se supplemental brief that “the court
    could not use that conviction as the basis for that adjudication”
    (People v Bailey, 90 AD3d 1664, 1666, lv denied 19 NY3d 861). With
    respect to defendant’s contention in appeal No. 3, which is raised in
    his pro se supplemental brief, that the court erred in imposing a fine
    without holding a hearing or otherwise determining that the amount of
    the fine corresponded to defendant’s gain from the offense, “ ‘[a]
    fine for a felony, when initially authorized by article 60, may be
    imposed, irrespective of whether the defendant gained money or
    property [L. 1977, c. 352; (Penal Law) § 80.00]’ ” (People v
    McFarlane, 18 AD3d 577, 578, lv denied 5 NY3d 791, quoting William C.
    Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39,
    Penal Law art 80, at 5; see People v Ortiz [appeal No. 1], 104 AD3d
    1202, 1203). The sentence is not unduly harsh or severe.
    We have considered defendant’s remaining contentions in all three
    appeals in his main and pro se supplemental briefs, and we conclude
    that none warrant reversal or modification of the judgments or order.
    Entered:   December 23, 2016                    Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 11-01423

Filed Date: 12/23/2016

Precedential Status: Precedential

Modified Date: 12/23/2016