Opinion
07-26-2024
The PEOPLE of the State of New York, Respondent, v. James DUNN, Defendant-Appellant. (Appeal No. 3.)
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DAVID D. BASSETT OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Onondaga County Court (Stephen J. Dougherty, J.), rendered March 31, 2022. The judgment convicted defendant, upon a jury verdict, of robbery in the first degree, burglary in the first degree and criminal possession of a weapon in the second degree.
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DAVID D. BASSETT OF COUNSEL), FOR RESPONDENT.
PRESENT: LINDLEY, J.P., CURRAN, OGDEN, GREENWOOD, AND KEANE, JJ. MEMORANDUM AND ORDER
It is hereby ORDERED that the case is held, the decision is reserved, and the matter is remitted to Onondaga County Court for further proceedings in accordance with the following memorandum: In appeal No. 3, defendant appeals from a judgment convicting him, upon a jury verdict, of robbery in the first degree (Penal Law § 160.15 [3]), burglary in the first degree (§ 140.30 [2]), and criminal possession of a weapon in the second degree (§ 265.03 [3]). In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (§ 265.03 [3]). In appeal No. 2, defendant appeals from a judgment convicting him, upon his plea of guilty in the same plea proceeding, of promoting prison contraband in the first degree (§ 205.25 [2]) and conspiracy in the fifth degree (§ 105.05 [1]).
[1] At the outset, we agree with defendant in appeal Nos. 1 and 2 that his purported waivers of the right to appeal are invalid inasmuch as the perfunctory inquiry made by County Court was "insufficient to establish that the court engage[d] … defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" (People v. Cruz, 182 A.D.3d 999, 999, 120 N.Y.S.3d 914 [4th Dept. 2020] [internal quotation marks omitted]; see People v. Soutar, 170 A.D.3d 1633, 1634, 94 N.Y.S.3d 899 [4th Dept. 2019], lv denied 34 N.Y.3d 938, 109 N.Y.S.3d 726, 133 N.E.3d 430 [2019]; People v. Wilson, 159 A.D.3d 1542, 1543, 73 N.Y.S.3d 715 [4th Dept. 2018], lv denied 31 N.Y.3d 1154, 83 N.Y.S.3d 436, 108 N.E.3d 510 [2018]). Although defendant signed a written waiver of the right to appeal, "the record establishes that [the court] did not sufficiently explain the significance of the appeal waiver or ascertain defendant’s understanding thereof’ (Wilson, 159 A.D.3d at 1543, 73 N.Y.S.3d 715 [internal quotation marks omitted]; see People v. Augello, 222 A.D.3d 1398, 1399, 200 N.Y.S.3d 255 [4th Dept. 2023], lv denied 41 N.Y.3d 942, 206 N.Y.S.3d 248, 229 N.E.3d 1141 [2024]), and "a written waiver does not, standing alone, provide sufficient assurance that [a] defendant is knowingly, intelligently, and voluntarily giving up [the] right to appeal" (People v. Banks, 125 A.D.3d 1276, 1277, 2 N.Y.S.3d 714 [4th Dept. 2015], lv denied 25 N.Y.3d 1159, 15 N.Y.S.3d 291, 36 N.E.3d 94 [2015]; see Cruz, 182 A.D.3d at 999-1000, 120 N.Y.S.3d 914).
[2] In appeal Nos. 1 and 2, defendant further contends that his respective guilty pleas were not voluntarily, knowingly, and intelligently entered. Defendant correctly concedes that, by failing to move to withdraw his pleas or vacate the judgments of conviction, he failed to preserve those contentions for our review (see People v. Boyde, 224 A.D.3d 1306, 1306-1307, 204 N.Y.S.3d 364 [4th Dept. 2024]; Cruz, 182 A.D.3d at 1000, 120 N.Y.S.3d 914). Neither case falls within the narrow exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988]), and we decline to exercise our power to review defendant’s contentions as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]).
[3] In each of the three appeals, defendant contends that certain remarks from the court infringed on his right to self-representation. Defendant failed to preserve those contentions for appellate review (see People v. Phipps, 168 A.D.3d 881, 882, 91 N.Y.S.3d 466 [2d Dept. 2019], lv denied 33 N.Y.3d 952, 100 N.Y.S.3d 149, 123 N.E.3d 808 [2019], cert denied — U.S. —, 140 S.Ct. 245, 205 L.Ed.2d 138 [2019]; People v. Lucas, 131 A.D.3d 875, 876, 17 N.Y.S.3d 109 [1st Dept. 2015], lv denied 26 N.Y.3d 1090, 23 N.Y.S.3d 647, 44 N.E.3d 945 [2015]). We reject defendant’s related contention in each appeal that the court erred in denying his purported pretrial request to represent himself without conducting a searching inquiry. The record establishes that defendant "did not clearly and unequivocally request to proceed pro se, i.e., defendant’s statements d[id] not reflect a definitive commitment to self-representation that would trigger a searching inquiry by the trial court" (People v. Burney, 204 A.D.3d 1473, 1476, 166 N.Y.S.3d 798 [4th Dept. 2022] [internal quotation marks omitted]; see People v. Duarte, 37 N.Y.3d 1218, 1218-1219, 163 N.Y.S.3d 487, 183 N.E.3d 1205 [2022], cert denied — U.S. —, 143 S.Ct. 136, 214 L.Ed.2d 41 [2022]). Rather, defendant’s alleged request to proceed pro se "was made in the context of a claim expressing his dissatisfaction with his attorney" (People v. Couser, 210 A.D.3d 1513, 1514, 178 N.Y.S.3d 353 [4th Dept. 2022], lv denied 39 N.Y.3d 1071, 183 N.Y.S.3d 808, 204 N.E.3d 444 [2023] [internal quotation marks omitted]; see People v. Gillian, 8 N.Y.3d 85, 88, 828 N.Y.S.2d 277, 861 N.E.2d 92 [2006]; 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]). In any event, we conclude that defendant thereafter abandoned any request to proceed pro se inasmuch as he acquiesced to continued representation and was granted appointment of a third assigned counsel, who represented him at trial and through the subsequent plea proceeding (see Gillian, 8 N.Y.3d at 88, 828 N.Y.S.2d 277, 861 N.E.2d 92; Couser, 210 A.D.3d at 1514, 178 N.Y.S.3d 353).
Defendant contends in each appeal that his due process and statutory speedy trial rights were violated by the court’s failure to make a sufficient inquiry as to the People’s actual readiness for trial under CPL 30.30 (5). Defendant failed to preserve those contentions for out’ review (see CPL 470.05 [2]; see generally People v. Newton, 221 A.D.3d 1551, 1553, 200 N.Y.S.3d 613 [4th Dept. 2023], lv denied 40 N.Y.3d 1093, 204 N.Y.S.3d 801, 228 N.E.3d 614 [2024]), and we decline to exercise our power to review them as a matter of discretion in the interest of justice.
[4] Defendant further contends in appeal Nos. 1 and 3 that although the People indicated their readiness for trial, their respective certificates of compliance were invalid because they had not turned over disciplinary records for the officers involved in the underlying incidents and had therefore failed to comply with their disclosure obligations under CPL 245.20 (1) (k) (iv), thereby rendering the statement of readiness illusory and violating defendant’s statutory speedy trial rights. As defendant correctly concedes, the statutory speedy trial contentions are unpreserved inasmuch as he did not challenge the validity of the certificates of compliance before the trial court and did not move to dismiss either indictment based on lack of readiness (see People v. Robinson, 225 A.D.3d 1266, 1267-1268, 207 N.Y.S.3d 836 [4th Dept. 2024]; People v. Hickey, 222 A.D.3d 1429, 1429, 200 N.Y.S.3d 276 [4th Dept. 2023], lv denied 41 N.Y.3d 943, 206 N.Y.S.3d 249, 229 N.E.3d 1142 [2024]; People v. Valentin, 183 A.D.3d 1271, 1272, 123 N.Y.S.3d 376 [4th Dept. 2020], lv denied 35 N.Y.3d 1049, 127 N.Y.S.3d 846, 151 N.E.3d 527 [2020]).
In each appeal, defendant contends that he was denied effective assistance of counsel. To the extent that defendant’s contentions survive the plea in appeal Nos. 1 and 2 (see People v. Shaw, 222 A.D.3d 1401, 1403, 202 N.Y.S.3d 626 [4th Dept. 2023]; People v. Seymore, 188 A.D.3d 1767, 1769, 135 N.Y.S.3d 745 [4th Dept. 2020], lv denied 36 N.Y.3d 1100, 144 N.Y.S.3d 126, 167 N.E.3d 1261 [2021]), we conclude that, under the circumstances presented on the record, defendant has "failed to demonstrate the absence of strategic or other legitimate explanations for defense counsel’s alleged shortcomings" in any of the three appeals (People v. Rojas-Aponte, 224 A.D.3d 1264, 1265, 204 N.Y.S.3d 663 [4th Dept. 2024] [internal quotation marks omitted]; see People v. Dickeson, 84 A.D.3d 1743, 1743, 922 N.Y.S.2d 833 [4th Dept. 2011], lv denied 19 N.Y.3d 972, 950 N.Y.S.2d 355, 973 N.E.2d 765 [2012]). Moreover, to the extent that defendant’s contentions are based on matters outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claims (see generally People v. Sims, 41 N.Y.3d 995, 996, 212 N.Y.S.3d 564, 236 N.E.3d 168 [2024]; Rojas-Aponte, 224 A.D.3d at 1265, 204 N.Y.S.3d 663; People v. Parnell, 221 A.D.3d 1437, 1438, 200 N.Y.S.3d 566 [4th Dept. 2023], lv denied 40 N.Y.3d 1094, 204 N.Y.S.3d 785, 228 N.E.3d 599 [2024]).
In appeal No. 3, we conclude that the sentence is not unduly harsh or severe.
[5] Finally, in appeal No. 3, defendant contends that his conviction is not supported by legally sufficient evidence. We may not address that contention because the court did not rule on defendant’s renewed motion for a trial order of dismissal, and the failure to rule cannot be deemed a denial of that motion (see People v. Keane, 221 A.D.3d 1586, 1590, 198 N.Y.S.3d 471 [4th Dept. 2023]; People v. Johnson, 192 A.D.3d 1612, 1615-1616, 143 N.Y.S.3d 763 [4th Dept. 2021]), We thus hold the case, reserve decision, and remit the matter in appeal No. 3 to County Court for a ruling on defendant’s renewed motion for a trial order of dismissal (see generally People v. Spratley, 96 A.D.3d 1420, 1421, 946 N.Y.S.2d 361 [4th Dept. 2012]). In light of our determination, we do not address defendant’s contention in appeal No. 3 that the verdict is against the weight of the evidence. We further hold the case, reserve decision, and remit the matter in appeal No. 2 to County Court to allow defendant to make any necessary motions upon the determination in appeal No. 3 (see People v. Dinkins, 118 A.D.3d 559, 559-560, 988 N.Y.S.2d 165 [1st Dept. 2014]; see also People v. Vanwuyckhuyse, 213 A.D.3d 1286, 1288-1289, 184 N.Y.S.3d 507 [4th Dept. 2023], lv denied 40 N.Y.3d 931, 192 N.Y.S.3d 512, 213 N.E.3d 655 [2023]).