Opinion
755/19 KA 17-01097
02-05-2021
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
Now, upon remittitur from the Court of Appeals,
It is hereby ORDERED that, upon remittitur from the Court of Appeals, the judgment so appealed from is unanimously affirmed.
Memorandum: This case is before us upon remittitur from the Court of Appeals ( People v. Bisono , 36 N.Y.3d 1013, 140 N.Y.S.3d 433, 164 N.E.3d 239, 2020 N.Y. Slip Op. 07484 [2020], revg People v. Baker , 175 A.D.3d 1113, 105 N.Y.S.3d 314 [4th Dept. 2019] ). We previously affirmed a judgment convicting defendant upon his plea of guilty of attempted criminal sale of a controlled substance in the third degree ( Penal Law §§ 110.00, 220.39 [1] ). We concluded that defendant validly waived his right to appeal, and that such waiver encompassed his challenge in his main brief to the severity of the sentence and his challenge in his pro se supplemental brief to the geographic jurisdiction of County Court, and encompassed in part his contention in his pro se supplemental brief that he was denied effective assistance of counsel ( Baker , 175 A.D.3d at 1114-1115, 105 N.Y.S.3d 314 ). We further concluded that, to the extent that his contention that he was deprived of effective assistance of counsel was reviewable on direct appeal, it lacked merit ( id. at 1115, 105 N.Y.S.3d 314 ). The Court of Appeals reversed, stating that, based on the plea colloquy, it could not say that "defendant[ ] comprehended the nature and consequences of the waiver of appellate rights" ( Bisono , 36 N.Y.3d at 1018, 140 N.Y.S.3d 433, 164 N.E.3d 239, 2020 N.Y. Slip Op., *2 [internal quotation marks and brackets omitted]). The Court of Appeals remitted the matter to this Court for consideration of the issues raised but not decided on the appeal to this Court.
Upon remittitur, we affirm. The sentence is not unduly harsh or severe. Furthermore, notwithstanding the invalidity of defendant's waiver of the right to appeal, his challenge to the geographic jurisdiction of County Court is actually a challenge to venue (see People v. Curtis , 286 A.D.2d 901, 901-902, 730 N.Y.S.2d 901 [4th Dept. 2001], lv denied 97 N.Y.2d 728, 740 N.Y.S.2d 701, 767 N.E.2d 158 [2002] ; see generally People v. Greenberg , 89 N.Y.2d 553, 555-556, 656 N.Y.S.2d 192, 678 N.E.2d 878 [1997] ), which defendant forfeited by pleading guilty (see People v. Harris , 182 A.D.3d 992, 995, 123 N.Y.S.3d 306 [4th Dept. 2020], lv denied 35 N.Y.3d 1066, 129 N.Y.S.3d 400, 152 N.E.3d 1201 [2020] ; People v. Gesualdi , 247 A.D.2d 629, 629, 668 N.Y.S.2d 487 [2d Dept. 1998], lv denied 92 N.Y.2d 852, 677 N.Y.S.2d 83, 699 N.E.2d 443 [1998] ; see generally People v. Williams , 14 N.Y.2d 568, 570, 248 N.Y.S.2d 659, 198 N.E.2d 45 [1964] ).
Insofar as defendant's contention that he was denied effective assistance of counsel is before us on remittitur, that contention "does not survive his plea of guilty inasmuch as [t]here is no showing that the plea bargaining process was infected by any allegedly ineffective assistance or that defendant entered the plea because of his attorney[’s] allegedly poor performance" ( People v. Goforth , 122 A.D.3d 1310, 1310, 995 N.Y.S.2d 431 [4th Dept. 2014], lv denied 25 N.Y.3d 951, 7 N.Y.S.3d 280, 30 N.E.3d 171 [2015] [internal quotation marks omitted]; see People v. Cooper , 136 A.D.3d 1397, 1398, 24 N.Y.S.3d 481 [4th Dept. 2016], lv denied 27 N.Y.3d 1067, 38 N.Y.S.3d 838, 60 N.E.3d 1204 [2016] ). Defendant's remaining contentions in his pro se supplemental brief alleging ineffective assistance of counsel are not before us on remittitur inasmuch as they were "decided on the appeal to" this Court in our prior decision ( Bisono , 36 N.Y.3d at1018, 140 N.Y.S.3d 433, 164 N.E.3d 239, 2020 N.Y. Slip Op., *3 ).