Opinion
86 KA 19-01964
02-04-2022
The PEOPLE of the State of New York, Respondent, v. Charles R. JACKSON, Jr., Defendant-Appellant.
THE FOTI LAW FIRM, ROCHESTER (NEIL GUNTHER OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
THE FOTI LAW FIRM, ROCHESTER (NEIL GUNTHER OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, AND WINSLOW, 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 weapon in the second degree ( Penal Law § 265.03 [3] ). Preliminarily, we agree with defendant that the record does not establish that he validly waived his right to appeal. Supreme Court's "oral waiver colloquy and the written waiver signed by defendant together ‘mischaracterized the nature of the right that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal and the attendant rights to counsel and poor person relief, as well as a bar to all postconviction relief, and there is no clarifying language in either the oral or written waiver indicating that appellate review remained available for certain issues’ " ( People v. Johnson , 192 A.D.3d 1494, 1495, 140 N.Y.S.3d 833 [4th Dept. 2021], lv denied 37 N.Y.3d 965, 148 N.Y.S.3d 770, 171 N.E.3d 246 [2021] ; see People v. Thomas , 34 N.Y.3d 545, 564-566, 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] ).
Defendant's contention that the court erred by failing to conduct a minimal inquiry into his request for substitution of counsel "is encompassed by the plea ... except to the extent that the contention implicates the voluntariness of the plea" ( People v. Morris , 94 A.D.3d 1450, 1451, 942 N.Y.S.2d 725 [4th Dept. 2012], lv denied 19 N.Y.3d 976, 950 N.Y.S.2d 358, 973 N.E.2d 768 [2012] [internal quotation marks omitted]; see People v. Harris , 182 A.D.3d 992, 994, 123 N.Y.S.3d 306 [4th Dept. 2020], lv denied 35 N.Y.3d 1066, 129 N.Y.S.3d 400, 152 N.E.3d 1201 [2020] ). To the extent that defendant's contention implicates the voluntariness of the plea, it lacks merit. Defendant "failed to proffer specific allegations of a ‘seemingly serious request’ that would require the court to engage in a minimal inquiry" ( People v. Porto , 16 N.Y.3d 93, 100, 917 N.Y.S.2d 74, 942 N.E.2d 283 [2010] ; see People v. Morris , 183 A.D.3d 1254, 1255, 123 N.Y.S.3d 784 [4th Dept. 2020], lv denied 35 N.Y.3d 1047, 127 N.Y.S.3d 838, 151 N.E.3d 519 [2020] ). Rather, defendant made only " ‘vague assertions that defense counsel was not in frequent contact with him and did not aid in his defense’ " ( People v. Jones , 149 A.D.3d 1576, 1577, 52 N.Y.S.3d 804 [4th Dept. 2017], lv denied 29 N.Y.3d 1129, 64 N.Y.S.3d 679, 86 N.E.3d 571 [2017] ) and "conclusory assertions that he and defense counsel disagreed about ... strategy" ( People v. Brady , 192 A.D.3d 1557, 1558, 140 N.Y.S.3d 846 [4th Dept. 2021], lv denied 37 N.Y.3d 954, 147 N.Y.S.3d 522, 170 N.E.3d 396 [2021] ). In any event, we conclude that the court "conducted the requisite ‘minimal inquiry’ to determine whether substitution of counsel was warranted" ( People v. Chess , 162 A.D.3d 1577, 1579, 79 N.Y.S.3d 433 [4th Dept. 2018], quoting People v. Sides , 75 N.Y.2d 822, 825, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990] ). The record establishes that the court "allowed defendant to air his concerns about defense counsel, and ... reasonably concluded that defendant's vague and generic objections had no merit or substance" ( People v. Linares , 2 N.Y.3d 507, 511, 780 N.Y.S.2d 529, 813 N.E.2d 609 [2004] ), and "properly concluded that defense counsel was ‘reasonably likely to afford ... defendant effective assistance’ of counsel" ( People v. Bradford , 118 A.D.3d 1254, 1255, 987 N.Y.S.2d 727 [4th Dept. 2014], lv denied 24 N.Y.3d 1082, 1 N.Y.S.3d 9, 25 N.E.3d 346 [2014], quoting People v. Medina , 44 N.Y.2d 199, 208, 404 N.Y.S.2d 588, 375 N.E.2d 768 [1978] ; see Chess , 162 A.D.3d at 1579, 79 N.Y.S.3d 433 ).
Although defendant's challenge to the court's refusal to suppress tangible evidence survives his guilty plea (see CPL 710.70 [2] ; People v. Poole , 55 A.D.3d 1354, 1355, 864 N.Y.S.2d 359 [4th Dept. 2008], lv denied 11 N.Y.3d 929, 874 N.Y.S.2d 14, 902 N.E.2d 448 [2009] ), defendant's challenge is "not preserved for our review inasmuch as he failed to raise th[e] specific contention [he now advances on appeal] in his motion papers, at the suppression hearing, or in his posthearing papers as a ground for suppression" ( People v. Burden , 191 A.D.3d 1260, 1261, 137 N.Y.S.3d 783 [4th Dept. 2021], lv denied 37 N.Y.3d 954, 147 N.Y.S.3d 527, 170 N.E.3d 401 [2021] ; see CPL 470.05 [2] ). We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ; Burden , 191 A.D.3d at 1261, 137 N.Y.S.3d 783 ).
Finally, defendant contends that he was denied effective assistance of counsel, which rendered his plea involuntary, because defense counsel failed to advise him of his right to testify at the suppression hearing. Defendant's contention survives his guilty plea "only insofar as he demonstrates that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of [his] attorney[’s] allegedly poor performance" ( People v. Rausch , 126 A.D.3d 1535, 1535, 6 N.Y.S.3d 863 [4th Dept. 2015], lv denied 26 N.Y.3d 1149, 32 N.Y.S.3d 63, 51 N.E.3d 574 [2016] [internal quotation marks omitted]; see People v. Spencer , 170 A.D.3d 1614, 1615, 94 N.Y.S.3d 503 [4th Dept. 2019], lv denied 37 N.Y.3d 974, 150 N.Y.S.3d 710, 172 N.E.3d 822 [2021] ). Here, however, defendant's contention "is based primarily on matters outside the record and must be raised pursuant to a CPL 440.10 motion" ( People v. Richards , 177 A.D.3d 1280, 1282, 112 N.Y.S.3d 394 [4th Dept. 2019], lv denied 35 N.Y.3d 994, 125 N.Y.S.3d 626, 149 N.E.3d 387 [2020] ; see People v. Balenger , 70 A.D.3d 1318, 1318, 895 N.Y.S.2d 623 [4th Dept. 2010], lv denied 14 N.Y.3d 885, 903 N.Y.S.2d 773, 929 N.E.2d 1008 [2010] ). To the extent that defendant's contention is reviewable on direct appeal, we conclude that it lacks merit inasmuch as he "received an advantageous plea, and ‘nothing in the record casts doubt on the apparent effectiveness of counsel’ " ( People v. Shaw , 133 A.D.3d 1312, 1313, 19 N.Y.S.3d 449 [4th Dept. 2015], lv denied 26 N.Y.3d 1150, 32 N.Y.S.3d 64, 51 N.E.3d 575 [2016], quoting People v. Ford , 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995] ; see Spencer , 170 A.D.3d at 1615, 94 N.Y.S.3d 503 ).