Opinion
574 KA 16–00448
05-04-2018
The PEOPLE of the State of New York, Respondent, v. Terrell B. MILLER, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT–APPELLANT. TERRELL B. MILLER, DEFENDANT–APPELLANT PRO SE. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT–APPELLANT.
TERRELL B. MILLER, DEFENDANT–APPELLANT PRO SE.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., DEJOSEPH, 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 burglary in the first degree ( Penal Law § 140.30 [4 ] ). To the extent that defendant contends in his main brief that his waiver of the right to appeal is invalid, we reject that contention. The record establishes that County Court "engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice ..., and informed him that the waiver was a condition of the plea agreement" ( People v. Krouth, 115 A.D.3d 1354, 1354–1355, 982 N.Y.S.2d 678 [4th Dept. 2014], lv denied 23 N.Y.3d 1064, 994 N.Y.S.2d 323, 18 N.E.3d 1144 [2014] [internal quotation marks omitted] ). Contrary to defendant's assertion, the record further establishes that defendant read and understood the contents of the written waiver that he executed during the proceeding (cf. People v. Bradshaw, 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ). We thus conclude that "[t]he plea colloquy, together with the written waiver of the right to appeal executed by defendant, establishes that defendant's waiver of the right to appeal was knowingly, intelligently, and voluntarily entered" ( People v. Fontaine, 144 A.D.3d 1658, 1658, 42 N.Y.S.3d 493 [4th Dept. 2016], lv. denied 29 N.Y.3d 997, 57 N.Y.S.3d 718, 80 N.E.3d 411 [2017] ; see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). The valid waiver of the right to appeal encompasses defendant's challenges in his main and pro se supplemental briefs to the court's suppression ruling (see People v. Sanders, 25 N.Y.3d 337, 342, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ; People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 [1999] ), and his challenge in his main brief to the severity of the sentence (see Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Defendant's further contention in his main brief that he was denied effective assistance of counsel because defense counsel should not have raised the issue of the waiver of the right to appeal during the plea proceeding survives his plea and valid waiver "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] ). "That contention, however, is belied by the statements of defendant [made following the initial discussion of the waiver] that he was satisfied with the representation provided by defense counsel" ( People v. Kapp, 59 A.D.3d 974, 975, 872 N.Y.S.2d 331 [4th Dept. 2009], lv denied 12 N.Y.3d 818, 881 N.Y.S.2d 25, 908 N.E.2d 933 [2009] ). Moreover, defendant failed to demonstrate the absence of a strategic or other legitimate explanation for defense counsel's discussion of the waiver inasmuch as the record establishes that the prosecutor had already prepared a written waiver prior to the proceeding and that defendant benefitted from the waiver insofar as it secured the court's sentencing commitment to a range far lower than the maximum sentence (see People v. Turck, 305 A.D.2d 1072, 1073, 758 N.Y.S.2d 895 [4th Dept. 2003], lv denied 100 N.Y.2d 566, 763 N.Y.S.2d 824, 795 N.E.2d 50 [2003] ).
Defendant further contends in his main brief that defense counsel took a position adverse to him at sentencing and that he was therefore deprived of effective assistance of counsel. We reject that contention inasmuch as the record establishes that defense counsel's comments at sentencing were not adverse to defendant's position (see People v. Collins, 85 A.D.3d 1678, 1679, 925 N.Y.S.2d 775 [4th Dept. 2011], lv denied 18 N.Y.3d 993, 945 N.Y.S.2d 647, 968 N.E.2d 1003 [2012] ; see also People v. Washington, 25 N.Y.3d 1091, 1095, 13 N.Y.S.3d 343, 34 N.E.3d 853 [2015] ; People v. Fifield, 24 A.D.3d 1221, 1222, 807 N.Y.S.2d 256 [4th Dept 2005], lv denied 6 N.Y.3d 775, 811 N.Y.S.2d 342, 844 N.E.2d 797 [2006] ).
To the extent that defendant's contention in his pro se supplemental brief that he was denied effective assistance of counsel survives his guilty plea and valid waiver of the right to appeal (see Rausch, 126 A.D.3d at 1535, 6 N.Y.S.3d 863 ), we reject that contention. The record establishes that defendant "receive[d] an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel" ( People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995] ; see People v. Parson, 27 N.Y.3d 1107, 1108, 36 N.Y.S.3d 85, 55 N.E.3d 1058 [2016] ; People v. Barnes, 41 A.D.3d 1309, 1310, 837 N.Y.S.2d 817 [4th Dept. 2007], lv denied 9 N.Y.3d 920, 844 N.Y.S.2d 175, 875 N.E.2d 894 [2007] ). Further, to the extent that defendant's contention in his pro se supplemental brief is based upon matters outside the record, his contention must be raised by way of a motion pursuant to CPL 440.10 (see People v. Smith, 122 A.D.3d 1300, 1301, 995 N.Y.S.2d 881 [4th Dept. 2014], lv denied 25 N.Y.3d 1172, 15 N.Y.S.3d 303, 36 N.E.3d 106 [2015] ).