Opinion
No. 137 KA 22-02020
03-15-2024
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. TYRONE BYRD, DEFENDANT-APPELLANT.
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (ELISABETH A. DANNAN OF COUNSEL), FOR RESPONDENT.
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (ELISABETH A. DANNAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., BANNISTER, MONTOUR, OGDEN, AND DELCONTE, JJ.
Appeal from a judgment of the Onondaga County Court (Thomas J. Miller, J.), rendered May 14, 2019. The judgment convicted defendant upon his plea of guilty of burglary in the first degree (two counts).
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 two counts of burglary in the first degree (Penal Law § 140.30 [1]). Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid, we nevertheless conclude that none of defendant's contentions on appeal requires reversal or modification (see generally People v Paul, 139 A.D.3d 1383, 1383 [4th Dept 2016], lv denied 28 N.Y.3d 973 [2016]; People v Shubert, 83 A.D.3d 1577, 1577 [4th Dept 2011]). Defendant's contention that his plea of guilty was invalid because the Judge who presided over his plea proceeding recused himself prior to sentencing is unpreserved for appellate review and, in any event, without merit (see generally People v Pastor, 28 N.Y.3d 1089, 1090-1091 [2016]). "Where, as here, a judge voluntarily recuses [themselves] to avoid the appearance of impropriety, 'judicial proceedings had prior to the recusal... remain valid, absent a showing of actual bias or actual impropriety'" (People v Joseph, 167 A.D.3d 776, 777 [2d Dept 2018]; see generally Ulrich v Estate of Zdunkiewicz, 8 A.D.3d 1014, 1014 [4th Dept 2004]). Defendant did not make such a showing here.
Defendant further contends that his guilty plea was not knowing, voluntary, and intelligent because certain portions of Supreme Court's inquiry of defendant occurred after his factual admissions to the elements of the crime. That contention is not preserved for our review inasmuch as defendant did not move to withdraw his guilty plea or to vacate the judgment of conviction on that ground (see generally People v Scales, 118 A.D.3d 1500, 1500 [4th Dept 2014], lv denied 23 N.Y.3d 1067 [2014]), and the narrow exception to the preservation rule does not apply here (see generally People v Lopez, 71 N.Y.2d 662, 666 [1988]).
Contrary to defendant's contention, we conclude that County Court did not abuse its discretion in denying defendant's motion to withdraw his guilty plea. Defendant's assertions that he did not understand the proceedings are belied by the statements he made during the plea colloquy (see People v Lewicki, 118 A.D.3d 1328, 1329 [4th Dept 2014], lv denied 23 N.Y.3d 1064 [2014]).
Defendant's contention that defense counsel was ineffective does not survive his guilty plea because defendant has not "demonstrate[d] that the plea bargaining process was infected by [the] allegedly ineffective assistance or that [he] entered the plea because of [his] attorney['s] allegedly poor performance" (People v Jackson, 202 A.D.3d 1447, 1449 [4th Dept 2022], lv denied 38 N.Y.3d 951 [2022] [internal quotation marks omitted]; see People v Coleman, 178 A.D.3d 1377, 1378 [4th Dept 2019], lv denied 35 N.Y.3d 1026 [2020]). Defendant failed to show a reasonable probability that, but for defense counsel's alleged errors, defendant would not have pleaded guilty and would have insisted on going to trial (see Coleman, 178 A.D.3d at 1378; People v Yates, 173 A.D.3d 1849, 1850 [4th Dept 2019]).
Contrary to defendant's contention, we conclude that his sentence is not unduly harsh or severe. We have reviewed defendant's remaining contentions and, as noted, we conclude that none warrants reversal or modification of the judgment.