Opinion
664 KA 18-00921
08-26-2021
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. FURQUAN MURRAY, DEFENDANT-APPELLANT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DARIENN P. BALIN OF COUNSEL), FOR RESPONDENT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DARIENN P. BALIN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, TROUTMAN, AND WINSLOW, JJ.
Appeal from a judgment of the Onondaga County Court (Stephen J. Dougherty, J.), rendered October 6, 2017. The judgment convicted defendant, upon his plea of guilty, of burglary in the first degree.
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 [2]). As an initial matter, defendant correctly contends and the People correctly concede that defendant did not validly waive his right to appeal. County Court "conflated the appeal waiver with the rights automatically waived by the guilty plea... and thus the record fails to establish that defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" (People v Walker, 171 A.D.3d 1501, 1502 [4th Dept 2019], lv denied 33 N.Y.3d 1074 [2019] [internal quotation marks omitted]). The court also "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 there was no clarification that appellate review remained available for certain issues" (People v Hussein, 192 A.D.3d 1705, 1706 [4th Dept 2021], lv denied 37 N.Y.3d 965 [2021]; see People v Thomas, 34 N.Y.3d 545, 565-566 [2019], cert denied - U.S. -, 140 S.Ct. 2634 [2020]).
Defendant contends that the court abused its discretion in denying his request to substitute counsel (see generally People v Porto, 16 N.Y.3d 93, 99-100 [2010]). Although that contention is not encompassed by his guilty plea inasmuch as, under the circumstances presented here, it "implicates the voluntariness of the plea" (People v Jones, 173 A.D.3d 1628, 1630 [4th Dept 2019] [internal quotation marks omitted]; cf. People v Guantero, 100 A.D.3d 1386, 1387 [4th Dept 2012], lv denied 21 N.Y.3d 1004 [2013]), we nonetheless conclude that it is without merit. Contrary to defendant's contention, this is not a case where, "[a]fter refusing to allow defendant to articulate his complaints about defense counsel, the court essentially gave defendant an ultimatum: plead guilty with present counsel or proceed to trial with present counsel" (Jones, 173 A.D.3d at 1630). Instead, the court "afforded defendant [multiple] opportunit[ies] to express his objections concerning defense counsel, and... thereafter reasonably concluded that defendant's objections were without merit" (People v Bethany, 144 A.D.3d 1666, 1669 [4th Dept 2016], lv denied 29 N.Y.3d 996 [2017], cert denied __US __, 138 S.Ct. 1571 [2018]; see People v Spencer, 185 A.D.3d 1440, 1441 [4th Dept 2020]). Further, although it denied defendant's request to discharge assigned counsel, the court did assign a second counsel to assist in defendant's defense and relieve any purported tension between defendant and his original counsel.
Next, even assuming, arguendo, that defendant's pro se oral motion at sentencing to withdraw his guilty plea preserved for our review his contention that his plea was not knowing, intelligent, and voluntary based on the grounds now raised on appeal (see People v Kosmetatos, 178 A.D.3d 1433, 1434 [4th Dept 2019], lv denied 35 N.Y.3d 994 [2020]), we conclude that his contention is without merit. The court was not obligated to engage in any specific litany or" 'uniform mandatory catechism of pleading defendant[]'" (People v Alexander, 19 N.Y.3d 203, 219 [2012]), and the record establishes that defendant's plea was knowingly, voluntarily, and intelligently entered "even though some of defendant's responses to the court's inquiries were monosyllabic" (People v Lewis, 114 A.D.3d 1310, 1311 [4th Dept 2014], lv denied 22 N.Y.3d 1200 [2014]; see People v VanDeViver, 56 A.D.3d 1118, 1118 [4th Dept 2008], lv denied 11 N.Y.3d 931 [2009], reconsideration denied 12 N.Y.3d 788 [2009]). Thus, we reject defendant's contention that the court abused its discretion in denying defendant's oral motion to withdraw his plea (see People v Long, 183 A.D.3d 1275, 1276 [4th Dept 2020], lv denied 35 N.Y.3d 1046 [2020], reconsideration denied 35 N.Y.3d 1095 [2020]). We similarly reject defendant's further contention that he was denied the effective assistance of counsel due to defense counsel's failure to file a formal motion to withdraw the plea on those grounds (see People v Weinstock, 129 A.D.3d 1663, 1664 [4th Dept 2015], lv denied 26 N.Y.3d 1012 [2015]; People v Viscomi, 286 A.D.2d 886, 886 [4th Dept 2001], lv denied 97 N.Y.2d 763 [2002]).
Defendant forfeited the right to raise his contention that the court erred in its consideration of defendant's request to proceed pro se at trial" 'inasmuch as he pleaded guilty before the court issued a ruling thereon'" (People v Ortega, 175 A.D.3d 1810, 1811 [4th Dept 2019]). Finally, the sentence is not unduly harsh or severe.