Opinion
1264 KA 17–00286
03-15-2019
The PEOPLE of the State of New York, Respondent, v. Algernon DIX, Defendant-Appellant.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (THERESA L. PREZIOSO OF COUNSEL), FOR DEFENDANT–APPELLANT. ALGERNON DIX, DEFENDANT–APPELLANT PRO SE. CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (THERESA L. PREZIOSO OF COUNSEL), FOR DEFENDANT–APPELLANT.
ALGERNON DIX, DEFENDANT–APPELLANT PRO SE.
CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDERIt 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 manslaughter in the first degree ( Penal Law § 125.20[1] ) arising from a shooting at a nightclub. Preliminarily, we deny the request of defendant in his pro se supplemental brief to hold the appeal inasmuch as "[i]t is not the practice of this Court to hold appeals from a judgment of conviction awaiting the outcome of a CPL article 440 motion" ( People v. Toporczyk, 175 A.D.2d 678, 678, 573 N.Y.S.2d 936 [4th Dept. 1991] ).
Addressing the contentions in defendant's main brief, we first conclude that defendant's waiver of the right to appeal was voluntarily, knowingly and intelligently entered (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). County Court "made clear that the waiver of the right to appeal was a condition of [the] plea, not a consequence thereof, and the record reflects that defendant understood that the waiver of the right to appeal was ‘separate and distinct from those rights automatically forfeited upon a plea of guilty’ " ( People v. Graham, 77 A.D.3d 1439, 1439, 908 N.Y.S.2d 490 [4th Dept. 2010], lv denied 15 N.Y.3d 920, 913 N.Y.S.2d 647, 939 N.E.2d 813 [2010], quoting Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; see People v. Alfiere, 156 A.D.3d 1446, 1446, 65 N.Y.S.3d 835 [4th Dept. 2017], lv. denied 31 N.Y.3d 980, 77 N.Y.S.3d 658, 102 N.E.3d 435 [2018] ; People v. Rogers, 81 A.D.3d 1320, 1320, 916 N.Y.S.2d 565 [4th Dept. 2011], lv denied 16 N.Y.3d 862, 923 N.Y.S.2d 424, 947 N.E.2d 1203 [2011] ). Although defendant correctly notes that the court did not specifically inquire during the plea colloquy whether he had been threatened, we conclude that "[t]here is no support in the record for defendant's contention that his appeal waiver was the result of coercion ..., particularly considering the court's thorough colloquy and defendant's affirmative statements that he had discussed the waiver with [defense] counsel and that he agreed to it" ( People v. Hayes, 71 A.D.3d 1187, 1188, 896 N.Y.S.2d 225 [3d Dept. 2010], lv denied 15 N.Y.3d 852, 909 N.Y.S.2d 29, 935 N.E.2d 821 [2010], reconsideration denied 15 N.Y.3d 921, 913 N.Y.S.2d 647, 939 N.E.2d 813 [2010], citing People v. Holman, 89 N.Y.2d 876, 878, 653 N.Y.S.2d 93, 675 N.E.2d 847 [1996] ; see People v. Smith, 138 A.D.3d 1415, 1416, 29 N.Y.S.3d 726 [4th Dept. 2016] ).
Defendant also contends that the photo array used in an identification procedure with a witness was unduly suggestive and therefore the court should have suppressed the witness's identification of him as the shooter. The valid waiver of the right to appeal forecloses our review of that contention (see People v. Sanders, 25 N.Y.3d 337, 342, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ; People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 [1999] ; People v. Gessner, 155 A.D.3d 1668, 1669, 64 N.Y.S.3d 822 [4th Dept. 2017] ). Moreover, defendant forfeited the right to raise that suppression issue on appeal inasmuch as he pleaded guilty before the court issued a ruling thereon (see People v. Fernandez, 67 N.Y.2d 686, 688, 499 N.Y.S.2d 919, 490 N.E.2d 838 [1986] ; People v. Rodgers, 162 A.D.3d 1500, 1501, 78 N.Y.S.3d 828 [4th Dept. 2018], lv denied 32 N.Y.3d 940, 84 N.Y.S.3d 867, 109 N.E.3d 1167 [2018] ; People v. Woody, 160 A.D.3d 1362, 1362–1363, 76 N.Y.S.3d 297 [4th Dept. 2018], lv denied 31 N.Y.3d 1154, 83 N.Y.S.3d 436, 108 N.E.3d 510 [2018] ).
Although defendant's further contention that his guilty plea was not knowing, voluntary, and intelligent survives the valid waiver of the right to appeal and is preserved for our review by his motion to withdraw the plea (see People v. Dames, 122 A.D.3d 1336, 1336, 994 N.Y.S.2d 758 [4th Dept. 2014], lv denied 25 N.Y.3d 1162, 15 N.Y.S.3d 294, 36 N.E.3d 97 [2015] ), we reject that contention for the reasons that follow.
First, defendant contends that the People violated their obligation to timely disclose Rosario material and, therefore, he was entitled to withdraw his plea. That contention lacks merit. Such material need not be disclosed until "[a]fter the jury has been sworn and before the prosecutor's opening address" ( CPL 240.45[1] ; see People v. Pepe, 259 A.D.2d 949, 950, 689 N.Y.S.2d 310 [4th Dept. 1999], lv denied 93 N.Y.2d 1024, 697 N.Y.S.2d 583, 719 N.E.2d 944 [1999] ). Here, the People did not violate their obligation inasmuch as defendant pleaded guilty before the People were required to disclose Rosario material and therefore defendant was not entitled to withdraw his plea on that ground (see generally People v. Morrow, 129 A.D.2d 863, 864, 513 N.Y.S.2d 891 [3d Dept. 1987], lv denied 70 N.Y.2d 651, 518 N.Y.S.2d 1045, 512 N.E.2d 571 [1987] ). In addition, defendant was not entitled to withdraw his plea on the ground that the People did not disclose their witnesses inasmuch as " ‘[t]here is neither a constitutional nor statutory obligation mandating the pretrial disclosure of the identity of ... prosecution witness[es]’ " ( People v. Nesmith, 144 A.D.3d 1508, 1509, 41 N.Y.S.3d 639 [4th Dept. 2016], lv denied 28 N.Y.3d 1187, 52 N.Y.S.3d 713, 75 N.E.3d 105 [2017] ; see People v. Stacchini, 108 A.D.3d 866, 867, 969 N.Y.S.2d 218 [3d Dept. 2013] ). Defendant's further contention that he was entitled to withdraw his plea because the People did not disclose other information also lacks merit. "There is no claim by defendant, or any indication in the record, that the People failed to disclose any exculpatory information in their possession" ( People v. Montgomery, 22 A.D.3d 379, 379–380, 802 N.Y.S.2d 446 [1st Dept. 2005], lv denied 6 N.Y.3d 778, 811 N.Y.S.2d 345, 844 N.E.2d 800 [2006] ; see generally People v. Fisher, 28 N.Y.3d 717, 722, 49 N.Y.S.3d 344, 71 N.E.3d 932 [2017] ).
Contrary to defendant's additional contention with respect to the voluntariness of his plea, the fact that the court did not specifically inquire during the plea colloquy whether he had been threatened does not render his plea involuntary. "[W]hile it would have been better for [the c]ourt to inquire as to whether any threats or promises had been made to induce [defendant] to plead guilty, ... defendant ma[de] no showing of prejudice by alleging that any such threats or promises actually occurred" ( People v. Demontigny, 60 A.D.3d 1152, 1152, 874 N.Y.S.2d 636 [3d Dept. 2009], lv denied 12 N.Y.3d 914, 884 N.Y.S.2d 695, 912 N.E.2d 1076 [2009] ). Moreover, "defendant's fear that a harsher sentence would be imposed if [he] were convicted after trial does not constitute coercion" ( People v. Griffin, 120 A.D.3d 1569, 1570, 993 N.Y.S.2d 404 [4th Dept. 2014], lv denied 24 N.Y.3d 1084, 1 N.Y.S.3d 11, 25 N.E.3d 348 [2014] [internal quotation marks omitted] ). Similarly, "the fact that defendant was required to accept or reject the plea offer within a short time period does not amount to coercion" ( People v. Carr, 147 A.D.3d 1506, 1507, 47 N.Y.S.3d 561 [4th Dept. 2017], lv denied 29 N.Y.3d 1030, 62 N.Y.S.3d 298, 84 N.E.3d 970 [2017] [internal quotation marks omitted]; see People v. Pitcher, 126 A.D.3d 1471, 1472, 6 N.Y.S.3d 352 [4th Dept. 2015], lv denied 25 N.Y.3d 1169, 15 N.Y.S.3d 301, 36 N.E.3d 104 [2015] ). To the extent that defendant contends that he was not afforded sufficient time to discuss the plea with defense counsel, that contention is belied by the record (see People v. Goodwin, 159 A.D.3d 1433, 1434, 73 N.Y.S.3d 327 [4th Dept. 2018] ). Furthermore, we conclude on this record that "the court did not coerce defendant into pleading guilty merely ... by commenting on the strength of the People's evidence against him" ( Pitcher, 126 A.D.3d at 1472, 6 N.Y.S.3d 352 ; see People v. Hall, 82 A.D.3d 1619, 1620, 919 N.Y.S.2d 638 [4th Dept. 2011], lv denied 16 N.Y.3d 895, 926 N.Y.S.2d 31, 949 N.E.2d 979 [2011] ). Contrary to defendant's further contention, his conclusory and unsubstantiated claims of innocence and coercion made during the sentencing proceeding are not supported by the record (see Dames, 122 A.D.3d at 1336, 994 N.Y.S.2d 758 ; People v. Adams, 45 A.D.3d 1346, 1346, 845 N.Y.S.2d 593 [4th Dept. 2007] ; People v. Dozier, 12 A.D.3d 1176, 1177, 785 N.Y.S.2d 249 [4th Dept. 2004] ).
Finally, defendant's valid waiver of the right to appeal encompasses his challenge to the severity of the sentence (see Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; Alfiere, 156 A.D.3d at 1446, 65 N.Y.S.3d 835 ).