Opinion
909 KA 16-00372
12-22-2023
The PEOPLE of the State of New York, Respondent, v. Tomias SHAW, Defendant-Appellant.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT-APPELLANT. TOMIAS SHAW, DEFENDANT-APPELLANT PRO SE. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
TOMIAS SHAW, DEFENDANT-APPELLANT PRO SE.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CURRAN, OGDEN, GREENWOOD, AND NOWAK, 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 manslaughter in the first degree ( Penal Law § 125.20 [1] ) and criminal possession of a controlled substance in the first degree (§ 220.21 [1]). In his main brief, defendant contends that his plea to manslaughter in the first degree was not voluntarily, knowingly, and intelligently entered because he negated an element of that offense during the colloquy and that he was coerced into pleading guilty on both counts. Inasmuch as defendant's challenges to the voluntariness of the plea would survive even a valid waiver of the right to appeal (see People v. Cunningham , 213 A.D.3d 1270, 1271, 182 N.Y.S.3d 459 [4th Dept. 2023], lv denied 39 N.Y.3d 1110, 186 N.Y.S.3d 845, 208 N.E.3d 73 [2023] ; People v. Sapp , 210 A.D.3d 1431, 1432, 176 N.Y.S.3d 525 [4th Dept. 2022], lv denied 39 N.Y.3d 1075, 183 N.Y.S.3d 791, 204 N.E.3d 427 [2023] ; People v. Sparcino , 78 A.D.3d 1508, 1509, 911 N.Y.S.2d 523 [4th Dept. 2010], lv denied 16 N.Y.3d 746, 917 N.Y.S.2d 628, 942 N.E.2d 1053 [2011] ), we need not address the validity of the waiver of the right to appeal, which defendant does not challenge on appeal (see People v. Morseman , 199 A.D.3d 1475, 1475, 154 N.Y.S.3d 615 [4th Dept. 2021] ).
We agree with defendant that his initial statements during the plea colloquy negated an essential element of manslaughter in the first degree, i.e., intent to cause serious physical injury (see People v. Hill , 16 N.Y.3d 811, 814, 921 N.Y.S.2d 181, 946 N.E.2d 169 [2011] ). The record shows, however, that there was the requisite further inquiry to ensure that defendant's guilty plea was knowing, intelligent, and voluntary (see People v. Thompson , 206 A.D.3d 1628, 1629, 169 N.Y.S.3d 423 [4th Dept. 2022], lv denied 38 N.Y.3d 1153, 174 N.Y.S.3d 31, 194 N.E.3d 738 [2022] ; People v. Cafarelli , 193 A.D.3d 1350, 1350-1351, 143 N.Y.S.3d 266 [4th Dept. 2021], lv denied 37 N.Y.3d 990, 152 N.Y.S.3d 427, 174 N.E.3d 367 [2021] ; People v. Granger , 96 A.D.3d 1667, 1667-1668, 947 N.Y.S.2d 868 [4th Dept. 2012], lv denied 19 N.Y.3d 1102, 955 N.Y.S.2d 557, 558, 979 N.E.2d 818, 819 [2012]). Defendant's responses upon further questioning removed any doubt about his guilt (see Cafarelli , 193 A.D.3d at 1351, 143 N.Y.S.3d 266 ; People v. Trinidad , 23 A.D.3d 1060, 1061, 804 N.Y.S.2d 876 [4th Dept. 2005], lv denied 6 N.Y.3d 760, 810 N.Y.S.2d 428, 843 N.E.2d 1168 [2005] ). Inasmuch as the plea to manslaughter in the first degree was voluntarily made, we reject defendant's further contention in his main brief that the plea to criminal possession of a controlled substance in the first degree must be vacated on the ground that the plea was based on the promise that he would receive a concurrent sentence as part of the plea bargain (see generally People v. Williams , 17 N.Y.3d 834, 836, 930 N.Y.S.2d 530, 954 N.E.2d 1155 [2011] ; People v. Richardson , 132 A.D.3d 1313, 1316, 17 N.Y.S.3d 245 [4th Dept. 2015], lv denied 26 N.Y.3d 1149, 32 N.Y.S.3d 63, 51 N.E.3d 574 [2016]).
Defendant next challenges the voluntariness of the plea on the ground that he was coerced into entering it by the fact that the guilty plea of the codefendant, who was his girlfriend and the mother of his child, was conditioned on him pleading guilty. We reject that contention. "[S]o long as the plea agreement is voluntarily, knowingly and intelligently made, the fact that it is linked to the prosecutor's acceptance of a plea bargain favorable to a third person does not, by itself, make defendant's plea illegal" ( People v. Fiumefreddo , 82 N.Y.2d 536, 544, 605 N.Y.S.2d 671, 626 N.E.2d 646 [1993] ). Although "connected pleas can present concerns which require special care, particularly where leniency in a promised sentence for a loved one is part of the bargain," the inclusion of a third-party benefit is just one factor to consider in determining whether a plea was voluntarily, knowingly, and intelligently made ( id. at 545, 605 N.Y.S.2d 671, 626 N.E.2d 646 ).
During the plea colloquy, defendant indicated that he understood that part of the plea bargain was "how they are going to deal" with the codefendant. The plea colloquy shows, however, that the plea was made knowingly, intelligently, and voluntarily. Defendant stated that he had enough time to consider the plea, that no promises were made to him other than the sentence, that no one threatened him or forced him to accept the plea, and that he was pleading guilty of his own free will. Thus, his claim of coercion is belied by the statements he made during the plea proceeding (see generally People v. Griffin , 204 A.D.3d 1385, 1386, 166 N.Y.S.3d 767 [4th Dept. 2022] ; People v. Garcia , 203 A.D.3d 1585, 1586, 161 N.Y.S.3d 919 [4th Dept. 2022], lv denied 38 N.Y.3d 1133, 172 N.Y.S.3d 868, 193 N.E.3d 533 [2022] ).
Defendant further contends in his main brief that he was denied effective assistance of counsel. To the extent that defendant's contention survives his plea (see Cunningham , 213 A.D.3d at 1271, 182 N.Y.S.3d 459 ; People v. Williams , 210 A.D.3d 1507, 1507-1508, 178 N.Y.S.3d 349 [4th Dept. 2022], lv denied 39 N.Y.3d 1081, 184 N.Y.S.3d 290, 204 N.E.3d 1072 [2023] ; People v. Clark , 191 A.D.3d 1471, 1472-1473, 141 N.Y.S.3d 221 [4th Dept. 2021], lv denied 36 N.Y.3d 1118, 146 N.Y.S.3d 213, 169 N.E.3d 571 [2021] ), we conclude that defendant received meaningful representation (see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). Defendant received a favorable plea and has not demonstrated "the absence of strategic or other legitimate explanations" for counsel's alleged shortcomings ( People v. Rivera , 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ). Indeed, the record shows that defendant made a strategic decision to accept the plea offer before County Court issued a ruling on various requests for relief, including suppression of items seized pursuant to a search warrant (see Granger , 96 A.D.3d at 1668, 947 N.Y.S.2d 868 ; People v. Lewis , 116 A.D.2d 778, 779, 497 N.Y.S.2d 297 [3d Dept. 1986], lv denied 67 N.Y.2d 885, 501 N.Y.S.2d 1037, 492 N.E.2d 1244 [1986] ).
We have reviewed defendant's contentions in his pro se supplemental brief and conclude that none warrants reversal or modification of the judgment.