Opinion
120 KA 18–02393
03-13-2020
The PEOPLE of the State of New York, Respondent, v. Brandon GRIFFITH, Defendant–Appellant.
CHARLES A. MARANGOLA, MORAVIA, FOR DEFENDANT–APPELLANT. JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (BRITTANY GROME ANTONACCI OF COUNSEL), FOR RESPONDENT.
CHARLES A. MARANGOLA, MORAVIA, FOR DEFENDANT–APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (BRITTANY GROME ANTONACCI OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, NEMOYER, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of two counts of promoting prison contraband in the first degree ( Penal Law § 205.25[2] ), defendant contends that County Court improperly denied his request to represent himself. We reject that contention. The right to counsel may be waived, allowing a defendant to proceed pro se, when: " ‘(1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues’ " ( People v. Silburn , 31 N.Y.3d 144, 150, 74 N.Y.S.3d 781, 98 N.E.3d 696 [2018] ; see generally People v. Crampe , 17 N.Y.3d 469, 481–482, 932 N.Y.S.2d 765, 957 N.E.2d 255 [2011], cert denied 565 U.S. 1261, 132 S.Ct. 1746, 182 L.Ed.2d 531 [2012] ). " ‘[A] reviewing court may look to the whole record, not simply to the waiver colloquy, in order to determine if a defendant effectively waived counsel’ " ( Crampe , 17 N.Y.3d at 482, 932 N.Y.S.2d 765, 957 N.E.2d 255 ). Here, defendant failed to satisfy the first and second factors. With respect to the first factor, his request to proceed pro se was made based on his belief that all the attorneys were in "cahoots," rather than on an unequivocal desire to proceed without the assistance of counsel (see generally People v. Larkins , 128 A.D.3d 1436, 1441, 8 N.Y.S.3d 755 [4th Dept. 2015], lv denied 27 N.Y.3d 1001, 38 N.Y.S.3d 110, 59 N.E.3d 1222 [2016] ; People v. Chicherchia , 86 A.D.3d 953, 954, 926 N.Y.S.2d 795 [4th Dept. 2011], lv denied 17 N.Y.3d 952, 936 N.Y.S.2d 78, 959 N.E.2d 1027 [2011] ).
With respect to the second factor, we conclude that the court properly determined that defendant could not make a knowing and intelligent waiver of the right to counsel. "[T]he second prong ... is satisfied when a defendant, competent to stand trial, satisfies the court, upon inquiry, that he [or she] understands the risks and disadvantages of proceeding pro se" ( People v. Schoolfield , 196 A.D.2d 111, 116, 608 N.Y.S.2d 413 [1st Dept. 1994], lv dismissed 83 N.Y.2d 858, 612 N.Y.S.2d 390, 634 N.E.2d 991 [1994], lv denied 83 N.Y.2d 915, 614 N.Y.S.2d 397, 637 N.E.2d 288 [1994] ). Although defendant correctly contends that a defendant who is deemed competent to stand trial necessarily has the competency to waive the right to counsel (see People v. Reason , 37 N.Y.2d 351, 353–354, 372 N.Y.S.2d 614, 334 N.E.2d 572 [1975], rearg. denied 37 N.Y.2d 817, 375 N.Y.S.2d 1029, 338 N.E.2d 332 [1975] ), courts have "long recognized that a mentally-ill defendant, though competent to stand trial, may not have the capacity to appreciate the demands attendant to self-representation, resulting in an inability to knowingly, voluntarily and intelligently waive the right to counsel and proceed pro se" ( People v. Stone , 22 N.Y.3d 520, 526–527, 983 N.Y.S.2d 454, 6 N.E.3d 572 [2014] ). Following its colloquy with defendant, the court determined that he lacked the ability to knowingly, voluntarily and intelligently waive the right to counsel. We see no basis to disturb that determination.
We reject defendant's further contention that the court abused its discretion in denying his motion to withdraw his guilty plea. " ‘When a defendant moves to withdraw a guilty plea, the nature and extent of the fact-finding inquiry rest[s] largely in the discretion of the Judge to whom the motion is made and a hearing will be granted only in rare instances’ " ( People v. Manor , 27 N.Y.3d 1012, 1013, 54 N.E.3d 1143 [2016] ; see CPL 220.60[3] ; People v. Mitchell , 21 N.Y.3d 964, 966, 970 N.Y.S.2d 919, 993 N.E.2d 405 [2013] ; People v. Spencer , 170 A.D.3d 1614, 1615, 94 N.Y.S.3d 503 [4th Dept. 2019] ). " ‘Permission to withdraw a guilty plea rests solely within the court's discretion ..., and refusal to permit withdrawal does not constitute an abuse of that discretion unless there is some evidence of innocence, fraud, or mistake in inducing the plea’ " ( People v. Leach , 119 A.D.3d 1429, 1430, 989 N.Y.S.2d 761 [4th Dept. 2014], lv denied 24 N.Y.3d 962, 996 N.Y.S.2d 221, 20 N.E.3d 1001 [2014] ).
Here, defendant contends that his motion should have been granted because he was actually innocent and entered his plea under duress. Even assuming, arguendo, that those contentions are preserved for our review, we conclude that they are "unsupported by the record and belied by [defendant's] statements during the plea colloquy" ( People v. Gerena , 174 A.D.3d 1428, 1430, 106 N.Y.S.3d 477 [4th Dept. 2019], lv denied 34 N.Y.3d 981, 113 N.Y.S.3d 633, 137 N.E.3d 3 [2019] ; see People v. Dale , 142 A.D.3d 1287, 1289, 38 N.Y.S.3d 333 [4th Dept. 2016], lv denied 28 N.Y.3d 1144, 52 N.Y.S.3d 296, 74 N.E.3d 681 [2017] ).
Finally, defendant contends that his sentence is unduly harsh and severe. Where, as here, a defendant receives the minimum term of incarceration authorized by law, "that part of his [or her] sentence cannot be considered unduly harsh or severe" ( People v. Hughes , 124 A.D.3d 1380, 1382, 999 N.Y.S.2d 659 [4th Dept. 2015], amended on rearg 126 A.D.3d 1430, 6 N.Y.S.3d 920 [4th Dept. 2015], lv denied 25 N.Y.3d 1165, 15 N.Y.S.3d 297, 36 N.E.3d 100 [2015] ; see People v. Heverly , 165 A.D.3d 1320, 1321, 82 N.Y.S.3d 750 [3d Dept. 2018], lv denied 32 N.Y.3d 1112, 91 N.Y.S.3d 363, 115 N.E.3d 635 [2018] ; People v. Leggett , 101 A.D.3d 1694, 1695, 956 N.Y.S.2d 385 [4th Dept. 2012], lv. denied 20 N.Y.3d 1101, 965 N.Y.S.2d 797, 988 N.E.2d 535 [2013] ). This Court lacks the " ‘interest of justice jurisdiction to impose a sentence less than the mandatory statutory minimum’ " ( People v. Dexter , 104 A.D.3d 1184, 1185, 960 N.Y.S.2d 773 [4th Dept. 2013] ).