People v Wagner (Vincent)

[*1] People v Wagner (Vincent) 2005 NY Slip Op 51597(U) [9 Misc 3d 131(A)] Decided on September 30, 2005 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 30, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: September 30, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : RUDOLPH, P.J., ANGIOLILLO and McCABE, JJ.
2004-789 RO CR

The People of the State of New York, Respondent,

against

Vincent Wagner, Appellant.

Appeal from a judgment of the Justice Court of the Town of Clarkstown, Rockland County (Victor J. Alfieri, Jr., J.), rendered May 12, 2004. The judgment convicted defendant, upon his plea of guilty, of driving while intoxicated.

Judgment of conviction unanimously affirmed.

A court has broad discretion to impose conditions of probation deemed "reasonably necessary to insure that the defendant will lead a law-abiding life or to assist [the probationer] to do so" (Penal Law § 65.10 [1]) and to "ameliorate the conduct which gave rise to the offense" (Penal Law § 65.10 [5]; People v Swenson, 12 AD3d
948 [2004]). The conditions that defendant refrain from alcohol consumption, avoid premises or the portions of premises whose "primary purpose" is the sale of alcoholic beverages, and to consent to the warrantless search of his person and premises, and the seizure of alcoholic beverages by probation officers and their agents, are appropriately "tailored in relation to the offense, and were reasonably related to defendant's rehabilitation" (People v Hale, 93 NY2d 454, 462 [1999]). Defendant's multiple arrests for driving while intoxicated-related offenses in a relatively short period of time, on the last occasion with a high blood alcohol content and following completion of a program geared to prevention of driving while under the influence of alcohol, rendered reasonable the above-noted restrictions (id.; see People v Schunk, 269 AD2d 857 [2000]; People v Berkley, 152 AD2d 788, 789 [1989]; People v Brown, 114 AD2d 1035, 1036 [1985]; cf. People v Brattole, 170 Misc 2d 1037, 1038 [App Term, 9th & 10th Jud Dists 1996]).

The record does not support defendant's claim that the court below adopted a "policy" of [*2]denying defendant's timely access to pre-sentence reports (CPL 390.50 [2] [a]) or even that he was denied such access in the instant case (cf. People v Harris, 229 AD2d 595, 595-596 [1996]), and we discern no basis to consider defense counsel's representation ineffective (e.g. People v Wiggan, 242 AD2d 549, 550 [1997]). First, neither defendant nor his appellate counsel moved pursuant to CPL 440.10 to vacate the judgment on the basis of trial counsel's ineffectiveness, which motion may be made
"[a]t any time after the entry of judgment." Such a motion is generally necessary to provide a proper record to review counsel's representation, particularly with respect to issues of strategy (People v Rivera, 71 NY2d 705, 709 [1988] [the courts will not decide ineffective representation claim "by resorting to supposition and conjecture rather than a thorough evaluation of each claim based on a complete record (CPL 440.10)"]; see also People v Love, 57 NY2d 998, 1000 [1982]; People v Brown, 45 NY2d 852, 853-854 [1978]; People v Polanco, 13 AD3d 100, 101 [2004]; e.g. People v Bruce, 259 AD2d 1005, 1006 [1999] [where "the record is silent with regard to whether the presentence report was provided to counsel at least one day before sentencing . . . If defendant is to establish a claim of ineffective assistance on that basis, he must develop the record by means of a CPL article 440 motion"]; see also People v Vaughan, 20 AD3d 940 [2005] [absent a "sworn allegation that the presentence report was not made available to . . . counsel at least one court day prior to sentencing," defendant's CPL article 440 motion was properly denied without a hearing]). Thus, we must assume that defendant is content to rely on the available record for appellate review of the claim.

Under either the "flexible standard" approach as required by the state constitution (People v Benevento, 91 NY2d 708, 712 [1998]), that is, whether on the law, evidence and circumstances of the particular case, and viewing the process "as a whole" (People v Henry, 95 NY2d 563, 565 [2000]; see also People v Stultz, 2 NY3d
277, 283-284 & n 12 [2004]), counsel provided less than "meaningful representation" (People v Baldi, 54 NY2d 137, 147 [1981]), or under the federal standard, whether counsel's performance was (1) "deficient" and (2) but for such deficiency, there is a reasonable probability that the result would have been "different" (People v Henry, 95 NY2d at 566 n; see Strickland v Washington, 466 US 668, 687, 694 [1984]), and "[t]o the extent that the existing record permits review," defendant received the effective assistance of counsel (People v Lopez, 2 AD3d 234 [2003]). The record does not support the claim that trial counsel did not receive the pre-sentence report in the statutorily-mandated time nor does it appear counsel failed adequately to review and represent defendant with respect to the report's contents. The record does not support defendant's present contention that his criminal history, use of medications, and prior substance abuse represented significant dimensions with respect to the court's exercise of sentencing discretion, and as noted, the sentence was not inconsistent with the terms of his negotiated plea and sentencing disposition. Defendant agreed to sentencing terms no more specific than a period of probation and having an entity other than the Department of Probation determine when (after six months), and to what extent, his driver's privileges would be restored. [*3]

We have considered defendant's remaining contentions and find them without merit.
Decision Date: September 30, 2005