Opinion
413 KA 15–00653
06-08-2018
The PEOPLE of the State of New York, Respondent, v. Talib ALSAIFULLAH, Defendant–Appellant. (Appeal No. 1.)
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT. TALIB ALSAIFULLAH, DEFENDANT–APPELLANT PRO SE. JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT.
TALIB ALSAIFULLAH, DEFENDANT–APPELLANT PRO SE.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, CARNI, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him, upon his Alford plea entered during deliberations following a jury trial, of promoting prison contraband in the first degree ( Penal Law § 205.25[2] ). In appeal No. 2, defendant appeals from an order denying his motion pursuant to CPL 440.30(1–a) for DNA testing on evidence including the weapon he was charged with possessing. In appeal No. 3, defendant appeals from an order denying his motion pursuant to CPL 440.10 to vacate the judgment. We affirm in each appeal.
Addressing first defendant's contentions in his main brief with respect to the judgment in appeal No. 1, we conclude that he "knowingly, intelligently, and voluntarily waived his right to appeal as a condition of the plea" ( People v. Bizardi, 130 A.D.3d 1492, 1492, 12 N.Y.S.3d 480 [4th Dept. 2015], lv denied 27 N.Y.3d 992, 38 N.Y.S.3d 102, 59 N.E.3d 1214 [2016] ; see generally People v. Sanders, 25 N.Y.3d 337, 340–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ). Contrary to defendant's contention, County Court "engage[d][him] in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice ..., and the record establishes that defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" ( Bizardi, 130 A.D.3d at 1492, 12 N.Y.S.3d 480 [internal quotation marks omitted]; see Sanders, 25 N.Y.3d at 341, 12 N.Y.S.3d 593, 34 N.E.3d 344 ). Contrary to defendant's further contentions, we conclude that "the waiver of the right to appeal was not rendered invalid based on the court's failure to require defendant to articulate the waiver in his own words" ( People v. Dozier, 59 A.D.3d 987, 987, 872 N.Y.S.2d 317 [4th Dept. 2009], lv denied 12 N.Y.3d 815, 881 N.Y.S.2d 23, 908 N.E.2d 931 [2009] ), the court's failure " ‘to specify during the colloquy which specific claims survive the waiver’ " ( Bizardi, 130 A.D.3d at 1492, 12 N.Y.S.3d 480 ), or the fact that the waiver "was not reduced to writing" ( People v. Bryan, 78 A.D.3d 1692, 1692, 910 N.Y.S.2d 749 [4th Dept. 2010], lv denied 16 N.Y.3d 829, 921 N.Y.S.2d 193, 946 N.E.2d 181 [2011] ; see People v. Nicholson, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).
Defendant contends that the court erred in denying his motion to dismiss the indictment on the ground that he was shackled and handcuffed while appearing before the grand jury. Even assuming, arguendo, that defendant's contention survives the valid waiver of the right to appeal (see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Gilmore, 12 A.D.3d 1155, 1155–1156, 785 N.Y.S.2d 231 [4th Dept. 2004] ; People v. Robertson, 279 A.D.2d 711, 712, 718 N.Y.S.2d 463 [3d Dept. 2001], lv denied 96 N.Y.2d 805, 726 N.Y.S.2d 383, 750 N.E.2d 85 [2001] ), we conclude that it lacks merit. "Although ‘a criminal defendant may not be physically restrained in the presence of a [grand] jury unless there is a rational basis, articulated on the record, for the restraint’ ..., reversal is not required here inasmuch as ‘the prosecutor ... gave cautionary instructions to the [g]rand [j]ury, which dispelled any prejudice that may have resulted’ " ( People v. Brooks, 140 A.D.3d 1780, 1781, 32 N.Y.S.3d 408 [4th Dept. 2016] ). Moreover, "the overwhelming nature of the evidence adduced before the grand jury eliminated the possibility that defendant was prejudiced as a result of the improper shackling" ( id. ).
Defendant's further contention that his plea was "not voluntarily entered because [he] provided only monosyllabic responses to [the court's] questions is actually a challenge to the factual sufficiency of the plea allocution" ( People v. Hendrix, 62 A.D.3d 1261, 1262, 878 N.Y.S.2d 532 [4th Dept. 2009], lv denied 12 N.Y.3d 925, 884 N.Y.S.2d 707, 912 N.E.2d 1088 [2009] ), which is encompassed by the valid waiver of the right to appeal (see People v. Smith, 26 A.D.3d 746, 747, 807 N.Y.S.2d 897 [4th Dept. 2006], lv denied 7 N.Y.3d 763, 819 N.Y.S.2d 888, 853 N.E.2d 259 [2006] ; People v. Biaselli, 12 A.D.3d 1133, 1133, 784 N.Y.S.2d 442 [4th Dept. 2004] ). Defendant's related contention that the court erred in accepting his Alford plea because the record lacked the requisite strong evidence of actual guilt to support his plea "survives his waiver of the right to appeal to the extent that it implicates the voluntariness of the plea" ( People v. Elliott, 107 A.D.3d 1466, 1466, 965 N.Y.S.2d 899 [4th Dept. 2013], lv denied 22 N.Y.3d 996, 981 N.Y.S.2d 2, 3 N.E.3d 1170 [2013] ). "By failing to move to withdraw the plea or vacate the judgment of conviction on the ground that the record lacked the requisite ‘strong evidence of actual guilt,’ however, defendant failed to preserve his contention for our review ..., and this case does not fall within the narrow exception to the preservation requirement" ( id. ; 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, we conclude that "the record establishes that defendant's Alford plea was the product of a voluntary and rational choice, and the record ... contains strong evidence of actual guilt" ( Elliott, 107 A.D.3d at 1466, 965 N.Y.S.2d 899 [internal quotation marks omitted] ).
Defendant contends that he was denied effective assistance of counsel because, according to defendant, defense counsel did not properly challenge the jury panel (see generally CPL 270.10 ). That contention does not survive his plea or the valid waiver of the right to appeal inasmuch as defendant failed to demonstrate that the plea bargaining process was infected by the allegedly ineffective assistance or that he entered the plea because of defense counsel's allegedly poor performance (see People v. Brinson, 151 A.D.3d 1726, 1726, 55 N.Y.S.3d 564 [4th Dept. 2017], lv denied 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 [2017] ; see generally People v. Petgen, 55 N.Y.2d 529, 534–535, 450 N.Y.S.2d 299, 435 N.E.2d 669 [1982], rearg. denied 57 N.Y.2d 674, 454 N.Y.S.2d 1032, 439 N.E.2d 1247 [1982] ).
The contentions in defendant's main and pro se supplemental briefs that he was denied due process based upon preindictment and other prosecutorial misconduct are forfeited as a result of his guilty plea (see People v. Escalera, 121 A.D.3d 1519, 1520–1521, 993 N.Y.S.2d 605 [4th Dept. 2014], lv denied 24 N.Y.3d 1083, 1 N.Y.S.3d 10, 25 N.E.3d 347 [2014] ; People v. Anderson, 90 A.D.3d 1475, 1477, 935 N.Y.S.2d 237 [4th Dept. 2011], lv denied 18 N.Y.3d 991, 945 N.Y.S.2d 646, 968 N.E.2d 1002 [2012] ), and are encompassed by his waiver of the right to appeal (see People v. Thomas, 56 A.D.3d 1240, 1240, 867 N.Y.S.2d 597 [4th Dept. 2008], lv denied 12 N.Y.3d 763, 876 N.Y.S.2d 714, 904 N.E.2d 851 [2009] ).
We conclude that defendant's claim of actual innocence in his pro se supplemental brief is not properly before us on defendant's direct appeal following his Alford plea. "A claim of actual innocence ‘must be based upon reliable evidence which was not presented at the [time of the plea]’ ..., and thus must be raised by a motion pursuant to CPL article 440" ( People v. Brockway, 148 A.D.3d 1815, 1815, 51 N.Y.S.3d 306 [4th Dept. 2017] ). Defendant failed to preserve his claim of actual innocence for our review inasmuch as he "failed to move to withdraw the plea, and his postjudgment motion pursuant to CPL 440.10 did not seek vacatur on that ground" ( People v. Grimes, 53 A.D.3d 1055, 1056, 860 N.Y.S.2d 723 [4th Dept. 2008], lv denied 11 N.Y.3d 789, 866 N.Y.S.2d 615, 896 N.E.2d 101 [2008] ; see People v. Jenkins, 84 A.D.3d 1403, 1409, 923 N.Y.S.2d 706 [2d Dept. 2011], lv denied 19 N.Y.3d 1026, 953 N.Y.S.2d 560, 978 N.E.2d 112 [2012] ). Moreover, a plea of guilty "should not be permitted to be used as a device for a defendant to avoid a [verdict following a] trial while maintaining a claim of factual innocence" ( People v. Plunkett, 19 N.Y.3d 400, 406, 948 N.Y.S.2d 233, 971 N.E.2d 363 [2012] ), and "the same is true of an Alford plea" ( Brockway, 148 A.D.3d at 1815, 51 N.Y.S.3d 306 ; see generally Matter of Silmon v. Travis, 95 N.Y.2d 470, 475, 718 N.Y.S.2d 704, 741 N.E.2d 501 [2000] ).
In appeal No. 2, defendant contends in his main brief that the court erred in summarily denying his motion pursuant to CPL 440.30(1–a) for DNA testing on evidence that included the weapon he was charged with possessing. We reject that contention. The sole offense for which defendant was indicted and convicted, i.e., promoting prison contraband in the first degree, a class D nonviolent felony ( Penal Law § 205.25[2] ), does not qualify as an offense for which the statute authorizes a motion for DNA testing of evidence following a plea of guilty and entry of a judgment thereon (see CPL 440.30[1–a][2] ).
Contrary to defendant's contention in appeal No. 3 in his main brief, the court properly denied his CPL 440.10 motion without a hearing on the ground that the judgment was "pending on appeal, and sufficient facts appear on the record with respect to the ... issue[s] raised upon the motion to permit adequate review thereof upon such an appeal" ( CPL 440.10[2][b] ; see People v. Satterfield, 66 N.Y.2d 796, 799, 497 N.Y.S.2d 903, 488 N.E.2d 834 [1985] ). To the extent that defendant raises those additional issues on his direct appeal in appeal No. 1, we conclude that they lack merit.