Opinion
859 KA 19-00086
11-18-2022
The PEOPLE of the State of New York, Respondent, v. Knowledge COUSER, Defendant-Appellant.
CAMBARERI & BRENNECK, SYRACUSE (MELISSA K. SWARTZ OF COUNSEL), FOR DEFENDANT-APPELLANT. MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (CATHERINE A. MENIKOTZ OF COUNSEL), FOR RESPONDENT.
CAMBARERI & BRENNECK, SYRACUSE (MELISSA K. SWARTZ OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (CATHERINE A. MENIKOTZ OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, WINSLOW, AND MONTOUR, JJ.
MEMORANDUM AND ORDER 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 murder in the second degree ( Penal Law § 125.25 [1] ). We affirm.
Initially, as defendant contends and the People correctly concede, the "purported waiver of the right to appeal is not enforceable inasmuch as the totality of the circumstances fails to reveal that defendant ‘understood the nature of the appellate rights being waived’ " ( People v. Youngs , 183 A.D.3d 1228, 1228, 121 N.Y.S.3d 701 [4th Dept. 2020], lv denied 35 N.Y.3d 1050, 127 N.Y.S.3d 826, 151 N.E.3d 507 [2020], quoting People v. Thomas , 34 N.Y.3d 545, 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ). Here, "[t]he written waiver of the right to appeal signed by defendant [at the time of the plea] and the verbal waiver colloquy conducted by [County Court] together improperly characterized the waiver as ‘an absolute bar to the taking of a direct appeal and the loss of attendant rights to counsel and poor person relief’ " ( People v. McMillian , 185 A.D.3d 1420, 1421, 127 N.Y.S.3d 669 [4th Dept. 2020], lv denied 35 N.Y.3d 1096, 131 N.Y.S.3d 306, 155 N.E.3d 799 [2020], quoting Thomas , 34 N.Y.3d at 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; see People v. Harlee , 187 A.D.3d 1586, 1587, 131 N.Y.S.3d 760 [4th Dept. 2020], lv denied 36 N.Y.3d 929, 135 N.Y.S.3d 333, 159 N.E.3d 1100 [2020] ).
We reject defendant's contention that the court erred in failing to address his request to proceed pro se. The record establishes that defendant "did not make that request clearly and unequivocally in his letter to the court or at any other time," and we thus conclude that the court "did not err in failing to address that alleged request" ( People v. Russell , 55 A.D.3d 1314, 1315, 864 N.Y.S.2d 587 [4th Dept. 2008], lv denied 11 N.Y.3d 930, 874 N.Y.S.2d 15, 902 N.E.2d 449 [2009] [internal quotation marks omitted]). Indeed, defendant's letter " ‘d[id] not reflect a definitive commitment to self-representation’ that would trigger a searching inquiry by the trial court" ( People v. Duarte , 37 N.Y.3d 1218, 1219, 163 N.Y.S.3d 487, 183 N.E.3d 1205 [2022], cert denied ––– US –––– [Oct. 3, 2022], quoting People v. LaValle , 3 N.Y.3d 88, 106, 783 N.Y.S.2d 485, 817 N.E.2d 341 [2004] ); rather, defendant's alleged request to proceed pro se " ‘was made in the context of a claim expressing his dissatisfaction with his attorney,’ " and defendant further expressed, equivocally, an openness to proceeding with a new attorney from a different area ( People v. White , 114 A.D.3d 1256, 1257, 980 N.Y.S.2d 678 [4th Dept. 2014], lv denied 23 N.Y.3d 1026, 992 N.Y.S.2d 808, 16 N.E.3d 1288 [2014] ; see Matter of Kathleen K. [Steven K.] , 17 N.Y.3d 380, 387, 929 N.Y.S.2d 535, 953 N.E.2d 773 [2011] ; People v. Gillian , 8 N.Y.3d 85, 88, 828 N.Y.S.2d 277, 861 N.E.2d 92 [2006] ; LaValle , 3 N.Y.3d at 106-107, 783 N.Y.S.2d 485, 817 N.E.2d 341 ). In any event, defendant abandoned any request to proceed pro se inasmuch as he "acquiesced to continued representation by counsel at subsequent proceedings," including the appointment of his third assigned counsel, following which defendant acted in a manner indicating his satisfaction with counsel ( People v. Berrian , 154 A.D.3d 486, 487, 61 N.Y.S.3d 481 [1st Dept. 2017], lv denied 30 N.Y.3d 1103, 77 N.Y.S.3d 2, 101 N.E.3d 388 [2018] ; see People v. Alexander , 109 A.D.3d 1083, 1084, 972 N.Y.S.2d 124 [4th Dept. 2013] ; People v. Ramsey , 201 A.D.2d 915, 915, 610 N.Y.S.2d 902 [4th Dept. 1994], lv denied 83 N.Y.2d 875, 613 N.Y.S.2d 135, 635 N.E.2d 304 [1994] ). We conclude on this record that, "[u]pon the appointment of his third assigned counsel, ‘[t]he issue of self-representation was closed,’ with defendant seemingly satisfied with that appointment" ( Gillian , 8 N.Y.3d at 88, 828 N.Y.S.2d 277, 861 N.E.2d 92, quoting LaValle , 3 N.Y.3d at 107, 783 N.Y.S.2d 485, 817 N.E.2d 341 ).
Defendant next contends that his plea was not knowingly, voluntarily, and intelligently entered because, during the plea colloquy, the court failed to advise him of all the rights he would be forfeiting upon pleading guilty, including his right against self-incrimination (see generally Boykin v. Alabama , 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 [1969] ; People v. Tyrell , 22 N.Y.3d 359, 361, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013] ). Defendant's contention is not preserved for our review (see People v. Barnes , 206 A.D.3d 1713, 1714-1715, 169 N.Y.S.3d 446 [4th Dept. 2022], lv denied 38 N.Y.3d 1132, 172 N.Y.S.3d 853, 193 N.E.3d 518 [2022] ; People v. Hampton , 142 A.D.3d 1305, 1306, 38 N.Y.S.3d 319 [4th Dept. 2016], lv denied 28 N.Y.3d 1124, 51 N.Y.S.3d 21, 73 N.E.3d 361 [2016] ; see generally People v. Conceicao , 26 N.Y.3d 375, 381-382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ), and the narrow exception to the preservation rule does not apply under the circumstances of this case (see People v. Gause , 133 A.D.3d 1367, 1367, 19 N.Y.S.3d 461 [4th Dept. 2015], lv denied 27 N.Y.3d 997, 38 N.Y.S.3d 107, 59 N.E.3d 1219 [2016] ; cf. Conceicao , 26 N.Y.3d at 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 ; Tyrell , 22 N.Y.3d at 364, 981 N.Y.S.2d 336, 4 N.E.3d 346 ). In any event, defendant's contention lacks merit (see Conceicao , 26 N.Y.3d at 383-384, 23 N.Y.S.3d 124, 44 N.E.3d 199 ; Barnes , 206 A.D.3d at 1715, 169 N.Y.S.3d 446 ).
Finally, contrary to defendant's contention, we conclude that the sentence is not unduly harsh or severe, and we decline defendant's request to exercise our power to reduce the sentence as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b] ).