Opinion
10-12-2017
The PEOPLE of the State of New York, Respondent, v. Lenard BERRIAN, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Benjamin Wiener of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Alexander Michaels of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Benjamin Wiener of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Alexander Michaels of counsel), for respondent.
Judgment, Supreme Court, New York County (Laura A. Ward, J. at plea, sentencing and resentencing; Eduardo Padró, J. at diversion proceedings), rendered December 28, 2015, as amended May 31, 2016, convicting defendant of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a term of three years, unanimously affirmed.
Defendant's challenges to the voluntariness of his plea are waived because he declined the resentencing court's offer of an opportunity to withdraw the plea, and we reject defendant's arguments to the contrary. In any event, since defendant did not raise the specific claims he raises on appeal during his initial plea withdrawal motion or at any other juncture, those claims are unpreserved (see People v. Conceicao, 26 N.Y.3d 375, 381–382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ), and we decline to review them in the interest of justice. As an alternative holding, we find that the record as a whole demonstrates that defendant's plea was knowing, intelligent, and voluntary. "The plea court explained to defendant that diversion [under CPL 216.05 ] was not guaranteed, it made no representations about the likelihood of defendant's acceptance for diversion, and it specified the sentence defendant would receive in the event of his rejection" ( People v. Brown, 127 A.D.3d 498, 498, 8 N.Y.S.3d 49 [1st Dept.2015], affd. 28 N.Y.3d 982, 40 N.Y.S.3d 348, 63 N.E.3d 68 [2016] ).
As to defendant's requests to proceed pro se, defendant acquiesced to continued representation by counsel at subsequent proceedings (see People v. Brunner, 151 A.D.3d 651, 57 N.Y.S.3d 151 [1st Dept.2017] ; People v. Little, 151 A.D.3d 531, 57 N.Y.S.3d 140 [1st Dept.2017] ). Moreover, defendant's requests were made in the context of also requesting a new lawyer (see People v. LaValle, 3 N.Y.3d 88, 105–107, 783 N.Y.S.2d 485, 817 N.E.2d 341 [2004] ). Accordingly, under the circumstances here, the court did not commit reversible error.
Defendant made a valid waiver of his right to appeal (see People v. Bryant, 28 N.Y.3d 1094, 45 N.Y.S.3d 335, 68 N.E.3d 60 [2016] ), which forecloses review of his remaining arguments. Regardless of whether defendant validly waived his right to appeal, we find his remaining arguments unavailing.
FRIEDMAN, J.P., RICHTER, MOSKOWITZ, GESMER, JJ., concur.