Opinion
319 KA 19-00222
07-09-2021
The PEOPLE of the State of New York, Respondent, v. Lawrence TAYLOR, Defendant-Appellant.
THE SAGE LAW FIRM GROUP PLLC, BUFFALO (KATHRYN FRIEDMAN OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
THE SAGE LAW FIRM GROUP PLLC, BUFFALO (KATHRYN FRIEDMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
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 [4] ). We affirm. We agree with defendant that his waiver of the right to appeal is invalid. Although no "particular litany" is required for a valid waiver of the right to appeal ( People v. Lopez , 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; see People v. Johnson [appeal No. 1], 169 A.D.3d 1366, 1366, 92 N.Y.S.3d 770 [4th Dept. 2019], lv denied 33 N.Y.3d 949, 100 N.Y.S.3d 165, 123 N.E.3d 824 [2019] ), here, defendant's waiver of the right to appeal is invalid because Supreme Court's oral colloquy mischaracterized it as an "absolute bar" to the taking of an appeal ( People v. Thomas , 34 N.Y.3d 545, 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ; see People v. Harlee , 187 A.D.3d 1586, 1587, 131 N.Y.S.3d 760 [4th Dept. 2020], lv denied 36 N.Y.3d 929, 135 N.Y.S.3d 333, 159 N.E.3d 1100 [2020] ). We note that the better practice is for the court to use the Model Colloquy, which "neatly synthesizes ... the governing principles" ( Thomas , 34 N.Y.3d at 567, 122 N.Y.S.3d 226, 144 N.E.3d 970, citing NY Model Colloquies, Waiver of Right to Appeal).
Additionally, although defendant signed a purported written waiver during the plea colloquy, that document did not correct any defects in the court's oral colloquy because "[t]he court did not inquire of defendant whether he understood the written waiver or whether he had even read the waiver before signing it" ( People v. Bradshaw , 18 N.Y.3d 257, 262, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ; see People v. Mobayed , 158 A.D.3d 1221, 1222, 70 N.Y.S.3d 267 [4th Dept. 2018], lv denied 31 N.Y.3d 1015, 78 N.Y.S.3d 285, 102 N.E.3d 1066 [2018] ).
Defendant contends that his plea was not knowingly, voluntarily, or intelligently entered because the court failed to apprise him of his right to have his guilt proven beyond a reasonable doubt and because the court coerced him into accepting the plea. By not moving to withdraw the plea or to vacate the judgment of conviction, defendant failed to preserve that contention (see People v. Wilkes , 160 A.D.3d 1491, 1491, 76 N.Y.S.3d 342 [4th Dept. 2018], lv denied 31 N.Y.3d 1154, 83 N.Y.S.3d 436, 108 N.E.3d 510 [2018] ; People v. Darling , 125 A.D.3d 1279, 1279, 1 N.Y.S.3d 717 [4th Dept. 2015], lv denied 25 N.Y.3d 1071, 12 N.Y.S.3d 622, 34 N.E.3d 373 [2015] ; People v. Boyd , 101 A.D.3d 1683, 1683, 956 N.Y.S.2d 382 [4th Dept. 2012] ). Contrary to defendant's contention, this case does not fall within the "rare exception to the preservation rule" ( Wilkes , 160 A.D.3d at 1491, 76 N.Y.S.3d 342 [internal quotation marks omitted]; see People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ).
In any event, defendant's challenge to the voluntariness of the plea is without merit. It is well settled that there is no "uniform mandatory catechism of pleading defendants" ( People v. Nixon , 21 N.Y.2d 338, 353, 287 N.Y.S.2d 659, 234 N.E.2d 687 [1967], cert denied sub nom. Robinson v. New York , 393 U.S. 1067, 89 S.Ct. 721, 21 L.Ed.2d 709 [1969] ; see People v. Harris , 61 N.Y.2d 9, 16-17, 471 N.Y.S.2d 61, 459 N.E.2d 170 [1983] ), and a plea is not rendered invalid " ‘solely because the [t]rial [j]udge failed to specifically enumerate all the rights to which the defendant was entitled’ " ( People v. Tyrell , 22 N.Y.3d 359, 365, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013] ), including the right to have his or her guilt proven beyond a reasonable doubt (see People v. Johnson , 60 A.D.3d 1496, 1496, 876 N.Y.S.2d 282 [4th Dept. 2009], lv denied 12 N.Y.3d 926, 884 N.Y.S.2d 707, 912 N.E.2d 1088 [2009] ).
We also reject defendant's contention that the court coerced him into pleading guilty. That contention is belied by the record because, at the plea colloquy, defendant denied that he had been threatened or otherwise pressured into pleading guilty (see People v. Pitcher , 126 A.D.3d 1471, 1472, 6 N.Y.S.3d 352 [4th Dept. 2015], lv denied 25 N.Y.3d 1169, 15 N.Y.S.3d 301, 36 N.E.3d 104 [2015] ). The court's statement "that defendant was required to accept or reject the plea offer within a short time period does not amount to coercion" ( People v. Carr , 147 A.D.3d 1506, 1507, 47 N.Y.S.3d 561 [4th Dept. 2017], lv denied 29 N.Y.3d 1030, 62 N.Y.S.3d 298, 84 N.E.3d 970 [2017] [internal quotation marks omitted]; see People v. Green , 140 A.D.3d 1660, 1661, 32 N.Y.S.3d 782 [4th Dept. 2016], lv denied 28 N.Y.3d 930, 40 N.Y.S.3d 358, 63 N.E.3d 78 [2016] ). Further, the court did not coerce defendant into pleading guilty by merely commenting on the strength of the People's evidence (see Pitcher , 126 A.D.3d at 1472, 6 N.Y.S.3d 352 ), or by informing him of the range of sentences he faced if he proceeded to trial and was convicted (see Carr , 147 A.D.3d at 1507, 47 N.Y.S.3d 561 ; Pitcher , 126 A.D.3d at 1472, 6 N.Y.S.3d 352 ; People v. Boyde , 71 A.D.3d 1442, 1443, 897 N.Y.S.2d 570 [4th Dept. 2010], lv denied 15 N.Y.3d 747, 906 N.Y.S.2d 820, 933 N.E.2d 219 [2010] ).
We reject defendant's contention that he was deprived of effective assistance of counsel. " ‘In the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel’ " ( People v. Singletary , 51 A.D.3d 1334, 1335, 858 N.Y.S.2d 483 [3d Dept. 2008], lv denied 11 N.Y.3d 741, 864 N.Y.S.2d 400, 894 N.E.2d 664 [2008] ). Here, defense counsel negotiated a favorable plea, and defendant has not demonstrated "the absence of strategic or other legitimate explanations" for counsel's alleged shortcomings at the plea colloquy ( People v. Rivera , 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ; see People v. Booth , 158 A.D.3d 1253, 1255, 70 N.Y.S.3d 704 [4th Dept. 2018], lv denied 31 N.Y.3d 1078, 79 N.Y.S.3d 100, 103 N.E.3d 1247 [2018] ; People v. Meddaugh , 150 A.D.3d 1545, 1547-1548, 55 N.Y.S.3d 777 [3d Dept. 2017] ).