People v Devault

[*1] People v Devault 2012 NY Slip Op 50314(U) Decided on February 27, 2012 County Court, Sullivan County LaBuda, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 27, 2012
County Court, Sullivan County

People of the State of New York

against

Kevin Devault, Defendant.



72-2011



Hon. James R. Farrell

Sullivan County District Attorney

LHC Sullivan County Courthouse

414 Broadway

Monticello, NY 12701

By: Joey Z. Drillings, ADA, of counsel

Attorney for the People

Joel Proyect, Esq.

P.O. Box 157

Parksville, NY 12768

Attorney for Defendant

Frank J. LaBuda, J.

Defendant, through his attorney, submits a motion to vacate his plea pursuant to CPL §330.30.

The People submit affirmation in opposition.

Defendant was charged by Indictment #72-2011 with one count of course of sexual conduct against a child in the second degree, one count of predatory sexual assault against a child, seven counts of rape in the second degree, seven counts of incest in the second degree and [*2]one count of sex abuse in the third degree for the ongoing sexual abuse of his biological daughter from age five through fifteen.

After extensive plea discussions defendant agreed to plead to count one, three, four and a reduced charge to count 2 in satisfaction of the remaining charges.

Defendant's allocution was extensive and thorough. It consisted of his admission to the charges, waiver of his right to appeal, discussion of his possible sentence in state prison, his being adjudicated as a sex offender, sex offender registration, his voluntary and knowing plea, his satisfaction with his attorney and his attorney's advice and there being no duress, misrepresentation or other influences on his voluntary plea.

Defendant now files a 330.30 motion to vacate his plea. Defendant's motion consists of a Notice of Motion and defendant's own Affidavit in Support.

Defendant argues to vacate his plea as follows:

1. his confession to the State Police(to a myriad of sexual crimes against his infant daughter) was caused by his sexual arousal to manner of speech and the sexual dress of NYS Police Investigator Nancy Stack;

2. the State Police obtained damaging statements from his wife illegally;

3. he wished to save his daughter from testifying at trial;

4. he was tired and mentally exhausted from his months in jail.

First, defendant's 330.30 motion herein is an improper vehicle to vacate a plea herein. A 330.30 is the legal means to vacate a jury verdict of guilty prior to a court's sentencing. This is plainly evident by the title "§ 330.30 motion to set aside verdict; grounds for" and the opening paragraph of §330.30 which reads, in pertinent part, "At any time after rendition of a verdict of guilty and before sentencing, ..." Nor is a §440.10 motion the proper vehicle herein. Said motion may be made "at any time after the entry of a judgment." See, CPL §440.10(1). Thus, a 440.10 motion is made after judgment (conviction and sentence).

Second, the proper method to withdraw a plea before sentence is pursuant to CPL §220.60(3).

Third, defendant statements in his affidavit are completely self serving and are defied by his lack of factual evidence and the court record. [*3]

Last, the defendant does not allege that he is not guilty of any of the crimes that he pled and allocated to. His lone statement in his affidavit shows that he is not professing innocence when he states in the second paragraph, "... I believe that my guilty plea was entered as a result of many factors other than guilt..." He is merely trying to lay the blame on other factors instead of his guilt.

None of defendant's arguments have a basis in fact and are improper arguments to vacate his plea.

This Court also finds it ironic that a defendant charged with a myriad of sexual offenses against his infant daughter over a ten year period would argue that his confession to the State Police was prompted by his sexual arousal to a NYS Police Investigator. This argument may be appropriate to the voluntariness of his confession not to the voluntariness of his plea.

"The record establishes that defendant's plea was knowingly, intelligently and voluntarily entered into in the presence of counsel and after the court fully apprised him of the consequences of his plea. (citations omitted)." People v Mercedes, 171 AD2d 1044 (4th Dept., 1991).

Generalized claims of innocence, or no claims at all, will not support a 220.60 motion to vacate a plea. See, People v Gardner, 150 AD2d 722 (2nd Dept., 1987).

Based upon the above, it is

ORDERED, that defendant motion to vacate his plea is denied.

This shall constitute the Decision and Order of this Court.

DATED: February 27, 2012

Monticello, NY

_______________________________

Hon. Frank J. LaBuda

Sullivan County Court Judge

and Surrogate