Opinion
240 KA 20-01020
04-22-2022
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. SAIO BARZEE, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT-APPELLANT. SAIO BARZEE, DEFENDANT-APPELLANT PRO SE. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT-APPELLANT.
SAIO BARZEE, DEFENDANT-APPELLANT PRO SE.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, LINDLEY, AND WINSLOW, JJ.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered June 20, 2013. The judgment convicted defendant, upon his plea of guilty, of robbery in the first degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of robbery in the first degree (Penal Law § 160.15 [3]). We affirm.
Initially, as defendant contends in his main brief and as the People correctly concede, defendant's waiver of the right to appeal is invalid. Here, "there is no basis [in the record] upon which to conclude that [County Court] ensured 'that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty'" (People v Jones, 107 A.D.3d 1589, 1590 [4th Dept 2013], lv denied 21 N.Y.3d 1075 [2013], quoting People v Lopez, 6 N.Y.3d 248, 256 [2006]). In addition, the court mischaracterized the waiver as an "absolute bar" to the taking of an appeal (People v Thomas, 34 N.Y.3d 545, 565 [2019], cert denied - U.S. -, 140 S.Ct. 2634 [2020]; see People v Osborn, 198 A.D.3d 1363, 1363 [4th Dept 2021], lv denied 37 N.Y.3d 1163 [2022]).
Defendant contends in his main and pro se supplemental briefs that his plea was not knowingly, voluntarily, and intelligently entered because the court threatened to impose a greater sentence in the event of a conviction following trial. Although that contention would survive even a valid waiver of the right to appeal (see People v Juarbe, 162 A.D.3d 1625, 1625 [4th Dept 2018]), defendant failed to move to withdraw his plea or to vacate the judgment of conviction on that ground and thus failed to preserve his contention for our review (see id. at 1625-1626; People v Kelly, 145 A.D.3d 1431, 1431 [4th Dept 2016], lv denied 29 N.Y.3d 949 [2017]; see generally People v Grimes, 53 A.D.3d 1055, 1056 [4th Dept 2008], lv denied 11 N.Y.3d 789 [2008]). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]; Kelly, 145 A.D.3d at 1431).
Defendant's additional challenges in his pro se supplemental brief to the voluntariness of his plea are likewise not preserved for our review (see People v White, 156 A.D.3d 1489, 1490 [4th Dept 2017], lv denied 31 N.Y.3d 988 [2018]). Defendant also failed to preserve for our review the contention in his pro se supplemental brief that the court was biased against him and should have recused itself (see CPL 470.05 [2]; People v Prado, 4 N.Y.3d 725, 726 [2004], rearg denied 4 N.Y.3d 795 [2005]; People v Wyzykowski, 120 A.D.3d 1603, 1603 [4th Dept 2014], lv denied 24 N.Y.3d 1090 [2014]; People v Jones, 79 A.D.3d 1773, 1773-1774 [4th Dept 2010], lv denied 16 N.Y.3d 832 [2011]). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]).
Defendant further contends in his pro se supplemental brief that he was denied effective assistance of counsel, which rendered his plea involuntary, because his attorneys, among other things, failed to properly investigate, did not adequately seek discovery, failed to move to suppress certain evidence, provided improper advice, and coerced him into pleading guilty. Defendant's contention survives his guilty plea "only insofar as he demonstrates that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of [his] attorney[s'] allegedly poor performance" (People v Rausch, 126 A.D.3d 1535, 1535 [4th Dept 2015], lv denied 26 N.Y.3d 1149 [2016] [internal quotation marks omitted]; see People v Johnson, 195 A.D.3d 1420, 1421 [4th Dept 2021], lv denied 37 N.Y.3d 1146 [2021]; People v Spencer, 170 A.D.3d 1614, 1615 [4th Dept 2019], lv denied 37 N.Y.3d 974 [2021]). Here, defendant's contention "is based, in part, on matter appearing on the record and, in part, on matter outside the record, and, thus, constitutes a mixed claim of ineffective assistance" (Johnson, 195 A.D.3d at 1421 [internal quotation marks omitted]; see People v Frazier, 63 A.D.3d 1633, 1634 [4th Dept 2009], lv denied 12 N.Y.3d 925 [2009]). Where, as here, "the 'claim of ineffective assistance of counsel cannot be resolved without reference to matter outside of the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the [mixed] claim'" to the extent it survives the guilty plea (People v Wilson [appeal No. 2], 162 A.D.3d 1591, 1592 [4th Dept 2018]; see Johnson, 195 A.D.3d at 1422; see generally People v Maffei, 35 N.Y.3d 264, 269-270 [2020]).
We have considered the remaining contentions in defendant's pro se supplemental brief and conclude that none warrants modification or reversal of the judgment.