Opinion
205 KA 18-00876
04-29-2022
The PEOPLE of the State of New York, Respondent, v. Darryl GOODWIN, Defendant-Appellant.
MARY WHITESIDE, NORTH HOLLYWOOD, FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DEREK HARNSBERGER OF COUNSEL), FOR RESPONDENT.
MARY WHITESIDE, NORTH HOLLYWOOD, FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DEREK HARNSBERGER OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, WINSLOW, AND BANNISTER, 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 criminal possession of a controlled substance in the third degree ( Penal Law § 220.16 [1] ) and criminally using drug paraphernalia in the second degree (§ 220.50 [2]). Initially, we agree with defendant that his waiver of the right to appeal is invalid and thus does not preclude our review of any of his contentions (see People v. Thomas , 34 N.Y.3d 545, 565-566, 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] ; People v. Josue F. , 191 A.D.3d 1483, 1484, 138 N.Y.S.3d 443 [4th Dept. 2021], lv denied 37 N.Y.3d 957, 147 N.Y.S.3d 548, 170 N.E.3d 422 [2021] ).
Defendant contends that he was denied the right to counsel when, during his arraignment in Rochester City Court, that court relied on a statement made by the Public Defender that defendant was not eligible for assigned counsel. Because "the record does not make clear, irrefutably, that a right to counsel violation has occurred," defendant's contention must be raised by way of a motion pursuant to CPL 440.10 ( People v. McLean , 15 N.Y.3d 117, 121, 905 N.Y.S.2d 536, 931 N.E.2d 520 [2010] ; see People v. Townsend , 202 A.D.3d 447, 448, 160 N.Y.S.3d 251 [1st Dept. 2022], lv denied 38 N.Y.3d 954, 165 N.Y.S.3d 446, 185 N.E.3d 967 [2022] ; People v. Bakerx , 114 A.D.3d 1244, 1247, 980 N.Y.S.2d 210 [4th Dept. 2014], lv denied 22 N.Y.3d 1196, 986 N.Y.S.2d 417, 9 N.E.3d 912 [2014] ).
We have considered defendant's remaining contentions concerning the grand jury presentation, and we conclude that they do not require modification or reversal of the judgment.