Opinion
27 KA 18-00878
04-22-2022
The PEOPLE of the State of New York, Respondent, v. Todd GRIFFIN, Defendant-Appellant. (Appeal No. 1.)
ANDREW G. MORABITO, EAST ROCHESTER, FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN C. PORTER OF COUNSEL), FOR RESPONDENT.
ANDREW G. MORABITO, EAST ROCHESTER, FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN C. PORTER OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. Memorandum: In appeal Nos. 1 and 2, defendant appeals from judgments convicting him upon his pleas of guilty during a single plea proceeding of, respectively, assault in the first degree ( Penal Law § 120.10 [1] ) and arson in the second degree (§ 150.15). We affirm in both appeals.
As defendant contends in both appeals and the People correctly concede, defendant's waiver of the right to appeal is invalid. Supreme Court's oral colloquy and the written waiver of the right to appeal provided defendant with erroneous information about the scope of the waiver and failed to identify that certain rights would survive the waiver (see People v. Bisono , 36 N.Y.3d 1013, 1017-1018, 140 N.Y.S.3d 433, 164 N.E.3d 239 [2020] ; People v. Thomas , 34 N.Y.3d 545, 564-567, 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] ).
Defendant further contends in both appeals that he was denied effective assistance of counsel. "In the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel" ( People v. Booth , 158 A.D.3d 1253, 1255, 70 N.Y.S.3d 704 [4th Dept. 2018], lv denied 31 N.Y.3d 1078, 79 N.Y.S.3d 100, 103 N.E.3d 1247 [2018] [internal quotation marks omitted]; see People v. Singletary , 51 A.D.3d 1334, 1335, 858 N.Y.S.2d 483 [3d Dept. 2008], lv denied 11 N.Y.3d 741, 864 N.Y.S.2d 400, 894 N.E.2d 664 [2008] ). Here, defense counsel obtained favorable pleas, which resolved numerous felony charges under two separate indictments and significantly reduced defendant's sentencing exposure. She also successfully obtained suppression of some of defendant's statements to police. Defendant has failed to demonstrate "the absence of strategic or other legitimate explanations" for defense counsel's alleged shortcomings ( People v. Rivera , 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ).
To the extent that defendant contends that he was denied effective assistance of counsel by defense counsel's failure to adequately communicate with him or to advise him that he faced consecutive terms of imprisonment, his contention involves matters " ‘between defendant and his attorney outside the record on appeal, and it must therefore be raised by way of a motion pursuant to CPL 440.10 ’ " ( People v. Brinson , 192 A.D.3d 1559, 1560, 143 N.Y.S.3d 489 [4th Dept. 2021] ; see People v. Barnes , 56 A.D.3d 1171, 1171-1172, 867 N.Y.S.2d 607 [4th Dept. 2008] ). To the extent that defendant contends that defense counsel was ineffective for failing to satisfactorily review the appeal waiver with defendant, we conclude that "such claim is rendered moot as a result of our determination that the appeal waiver was invalid" ( People v. Downs , 194 A.D.3d 1118, 1119, 146 N.Y.S.3d 695 [3d Dept. 2021], lv denied 37 N.Y.3d 971, 150 N.Y.S.3d 694, 172 N.E.3d 806 [2021] ). Furthermore, to the extent that defendant contends that defense counsel coerced him into pleading guilty, we conclude that his contention is "belied by his statements during the plea proceeding[ ]" ( People v. Shanley , 189 A.D.3d 2108, 2109, 134 N.Y.S.3d 856 [4th Dept. 2020], lv denied 36 N.Y.3d 1100, 144 N.Y.S.3d 117, 167 N.E.3d 1252 [2021] [internal quotation marks omitted]; see People v. Manor , 121 A.D.3d 1581, 1583, 993 N.Y.S.2d 424 [4th Dept. 2014], affd 27 N.Y.3d 1012, 35 N.Y.S.3d 272, 54 N.E.3d 1143 [2016] ).
Defendant's contention with respect to both appeals that the court erred in granting the People's motion to consolidate the two indictments for trial was forfeited by his guilty plea (see People v. Martinez , 105 A.D.3d 1458, 1458, 963 N.Y.S.2d 916 [4th Dept. 2013], lv denied 22 N.Y.3d 1042, 981 N.Y.S.2d 376, 4 N.E.3d 388 [2013] ; People v. Lynch , 13 A.D.3d 1142, 1142-1143, 787 N.Y.S.2d 749 [4th Dept. 2004], lv denied 4 N.Y.3d 800, 795 N.Y.S.2d 175, 828 N.E.2d 91 [2005] ).
Contrary to defendant's further contention in both appeals, we conclude that the sentences are not unduly harsh or severe. We have considered defendant's remaining contention raised in these appeals and conclude that it does not warrant reversal or modification of the judgments.