Opinion
No. 3 KA 21-01362
02-07-2025
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. ISAIAH NESMITH, DEFENDANT-APPELLANT.
SARAH S. HOLT, CONFLICT DEFENDER, ROCHESTER (FABIENNE N. SANTACROCE OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MERIDETH H. SMITH OF COUNSEL), FOR RESPONDENT.
SARAH S. HOLT, CONFLICT DEFENDER, ROCHESTER (FABIENNE N. SANTACROCE OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MERIDETH H. SMITH OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., BANNISTER, GREENWOOD, NOWAK, AND KEANE, JJ.
Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.), rendered June 5, 2019. The judgment convicted defendant upon his plea of guilty of burglary in the second 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 second degree (Penal Law § 140.25 [2]). Preliminarily, as defendant contends and the People correctly concede, defendant's waiver of the right to appeal is invalid. Defendant orally waived his right to appeal and executed a written waiver thereof. The language in the written waiver is inaccurate and misleading insofar as it purports to impose "an absolute bar to the taking of a direct appeal" and to deprive defendant of his "attendant rights to counsel and poor person relief, [as well as] all postconviction relief separate from the direct appeal" (People v Thomas, 34 N.Y.3d 545, 565 [2019], cert denied - U.S. -, 140 S.Ct. 2634 [2020]; see People v Rumph, 207 A.D.3d 1209, 1210 [4th Dept 2022], lv denied 39 N.Y.3d 1075 [2023]; People v Hunter, 203 A.D.3d 1686, 1686 [4th Dept 2022], lv denied 38 N.Y.3d 1033 [2022]). Although Supreme Court's colloquy "referred to issues that would still be preserved for appeal, including 'constitutional issues' and 'jurisdictional issues,'" the court's verbal statements" 'did nothing to counter the other inaccuracies set forth in the written appeal waiver'" (Hunter, 203 A.D.3d at 1686; see People v Bouie, 227 A.D.3d 1540, 1540-1541 [4th Dept 2024], lv denied 42 N.Y.3d 925 [2024]; Rumph, 207 A.D.3d at 1210).
Defendant contends that he was denied effective assistance of counsel because defense counsel did not await a decision on defendant's request for a bill of particulars and did not further investigate a possible Brady violation. 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 into the plea because of [his] attorney['s] allegedly poor performance" (People v Rausch, 126 A.D.3d 1535, 1535 [4th Dept 2015], lv denied 26 N.Y.3d 1149 [2016] [internal quotation marks omitted]; see People v Lewis, 228 A.D.3d 1247, 1248 [4th Dept 2024], lv denied 42 N.Y.3d 1036 [2024]). In addition, to the extent that defendant's contention is based on matters outside the record on appeal, it must be raised by way of motion pursuant to CPL 440.10 (see People v Dunn, 229 A.D.3d 1220, 1223 [4th Dept 2024]; Lewis, 228 A.D.3d at 1248). To the extent that defendant's contention survives his guilty plea and is based on the record before us, we conclude that defendant's contention lacks merit inasmuch as defendant "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 [4th Dept 2015], lv denied 26 N.Y.3d 1150 [2016]; see People v Scott, 204 A.D.3d 1448, 1448-1449 [4th Dept 2022], lv denied 38 N.Y.3d 1074 [2022]). Viewing the evidence, the law and the circumstances of this case in totality and as of the time of the representation, we conclude that defendant was afforded meaningful representation (see People v Penfold, 229 A.D.3d 1299, 1300 [4th Dept 2024], lv denied 42 N.Y.3d 1021 [2024]; see generally People v Baldi, 54 N.Y.2d 137, 147 [1981]).