Opinion
755 KA 17–01097
08-22-2019
The PEOPLE of the State of New York, Respondent, v. Trevis D. BAKER, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MICHAEL S. DEAL OF COUNSEL), FOR DEFENDANT–APPELLANT. TREVIS D. BAKER, DEFENDANT–APPELLANT PRO SE. JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (SUSAN M. HOWARD OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MICHAEL S. DEAL OF COUNSEL), FOR DEFENDANT–APPELLANT.
TREVIS D. BAKER, DEFENDANT–APPELLANT PRO SE.
JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (SUSAN M. HOWARD OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CARNI, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. Memorandum: On appeal from a judgment convicting him upon his plea of guilty of attempted criminal sale of a controlled substance in the third degree ( Penal Law §§ 110.00, 220.39[1] ), defendant contends in his main brief that his waiver of the right to appeal is invalid. We reject that contention. We conclude that "the plea colloquy here was sufficient because the right to appeal was adequately described without lumping it into the panoply of rights normally forfeited upon a guilty plea" ( People v. Sanders, 25 N.Y.3d 337, 341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ; see People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Contrary to defendant's contention, "[a]ny nonwaivable issues purportedly encompassed by the waiver ‘are excluded from the scope of the waiver [and] the remainder of the waiver is valid and enforceable’ " ( People v. Neal, 56 A.D.3d 1211, 1211, 867 N.Y.S.2d 612 [4th Dept. 2008], lv denied 12 N.Y.3d 761, 876 N.Y.S.2d 712, 904 N.E.2d 849 [2009] ; see People v. Gibson, 147 A.D.3d 1507, 1508, 47 N.Y.S.3d 612 [4th Dept. 2017], lv denied 29 N.Y.3d 1032, 62 N.Y.S.3d 301, 84 N.E.3d 973 [2017] ; People v. Weatherbee, 147 A.D.3d 1526, 1526, 46 N.Y.S.3d 811 [4th Dept. 2017], lv denied 29 N.Y.3d 1038, 62 N.Y.S.3d 307, 84 N.E.3d 979 [2017] ). Defendant's valid waiver encompasses his challenge in his main brief to the severity of his sentence (see Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Insofar as defendant in his pro se supplemental brief challenges the geographic jurisdiction of County Court, that contention is actually a challenge to venue in Orleans County, which is also encompassed by his valid waiver of the right to appeal (see People v. Parker, 151 A.D.3d 1876, 1876, 54 N.Y.S.3d 355 [4th Dept. 2017], lv denied 30 N.Y.3d 982, 67 N.Y.S.3d 584, 89 N.E.3d 1264 [2017] ), and is forfeited as a result of his plea of guilty (see People v. Williams, 14 N.Y.2d 568, 570, 248 N.Y.S.2d 659, 198 N.E.2d 45 [1964] ; People v. De Alvarez, 59 A.D.3d 732, 732–733, 873 N.Y.S.2d 724 [2d Dept 2009], lv denied 12 N.Y.3d 852, 881 N.Y.S.2d 664, 909 N.E.2d 587 [2009] ).
Finally, defendant's contention in his pro se supplemental brief that he was denied effective assistance of counsel survives his plea and valid waiver of the right to appeal "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, 6 N.Y.S.3d 863 [4th Dept. 2015], lv denied 26 N.Y.3d 1149, 32 N.Y.S.3d 63, 51 N.E.3d 574 [2016] [internal quotation marks omitted] ). To the extent that defendant contends that his attorney's failure to investigate a particular witness infected the plea process, that contention "involve[s] matters outside the record on appeal and therefore must be raised by way of a motion pursuant to CPL article 440" ( People v. Bethune, 21 A.D.3d 1316, 1316, 801 N.Y.S.2d 196 [4th Dept. 2005], lv denied 6 N.Y.3d 752, 810 N.Y.S.2d 420, 843 N.E.2d 1160 [2005] ; see also People v. Kaminski, 109 A.D.3d 1186, 1186, 971 N.Y.S.2d 721 [4th Dept. 2013], lv denied 22 N.Y.3d 1088, 981 N.Y.S.2d 674, 4 N.E.3d 976 [2014] ). To the extent that defendant's contention is reviewable on direct appeal, we conclude that it lacks merit inasmuch as he "receive[d] an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel" ( 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] [internal quotation marks omitted] ).