Opinion
477 KA 16–00449
04-27-2018
The PEOPLE of the State of New York, Respondent, v. William TYES, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM TYES, DEFENDANT–APPELLANT PRO SE. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM TYES, DEFENDANT–APPELLANT PRO SE.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, DEJOSEPH, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum:
Defendant appeals from a judgment convicting him, upon his plea of guilty, of manslaughter in the first degree ( Penal Law § 125.20[1] ). Contrary to defendant's contention in his main brief, the record establishes that he knowingly, voluntarily and intelligently waived his right to appeal (see generally People v. Sanders, 25 N.Y.3d 337, 341–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ). The valid waiver of the right to appeal encompasses defendant's challenges in his main and pro se supplemental briefs to County Court's suppression ruling (see id. at 342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ), and the challenge in his main brief to the severity of the sentence (see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; see generally People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416 [1998] ; People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46 [1998] ).
Defendant further contends in his pro se supplemental brief that he was denied effective assistance of counsel based upon conversations with defense counsel, including one in which defense counsel allegedly misrepresented the promised maximum sentence. Defendant's contention "survives his plea and valid waiver of the right to appeal 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] ). To the extent that defendant's contention is based upon matters outside the record, it must be raised by way of a motion pursuant to CPL article 440 (see People v. Blackwell, 129 A.D.3d 1690, 1691–1692, 12 N.Y.S.3d 425 [4th Dept. 2015], lv denied 26 N.Y.3d 926, 17 N.Y.S.3d 89, 38 N.E.3d 835 [2015] ; People v. Merritt, 115 A.D.3d 1250, 1251, 982 N.Y.S.2d 276 [4th Dept. 2014], lv denied 30 N.Y.3d 1021, 70 N.Y.S.3d 453, 93 N.E.3d 1217 [2017] ; People v. Graham, 77 A.D.3d 1439, 1440, 908 N.Y.S.2d 490 [4th Dept. 2010], lv denied 15 N.Y.3d 920, 913 N.Y.S.2d 647, 939 N.E.2d 813 [2010] ). Insofar as 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] ).
To the extent that defendant contends in his pro se supplemental brief that the court failed to make an appropriate inquiry into his request for substitution of counsel several months before the plea proceeding, his contention " ‘is encompassed by the plea and the waiver of the right to appeal 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] ; see People v. Guantero, 100 A.D.3d 1386, 1387, 953 N.Y.S.2d 438 [4th Dept. 2012], lv denied 21 N.Y.3d 1004, 971 N.Y.S.2d 256, 993 N.E.2d 1278 [2013] ). In any event, "defendant abandoned his request for new counsel when he ‘decid[ed] ... to plead guilty while still being represented by the same attorney’ " ( Guantero, 100 A.D.3d at 1387, 953 N.Y.S.2d 438 ; see Morris, 94 A.D.3d at 1451, 942 N.Y.S.2d 725 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.