Opinion
245 KA 14–02274
03-16-2018
The PEOPLE of the State of New York, Respondent, v. Gregory WARE, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. MCDERMOTT OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. MCDERMOTT OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, DEJOSEPH, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum:On appeal from a judgment convicting him, upon his plea of guilty, of manslaughter in the first degree ( Penal Law § 125.20 [1 ] ), defendant contends that his waiver of the right to appeal is not valid. We agree. It is well settled that, for a waiver of the right to appeal to be valid, the plea minutes must establish that it was knowingly, voluntarily and intelligently entered, and the plea court "must make certain that a defendant's understanding of the terms and conditions of a plea agreement is evident on the face of the record" ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). "When a trial court characterizes an appeal as one of the many rights automatically extinguished upon entry of a guilty plea, a reviewing court cannot be certain that the defendant comprehended the nature of the waiver of appellate rights" ( id. ). Here, we agree with defendant that the plea minutes fail to "establish that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" ( id. ), and thus the waiver is invalid (see People v. Mallard, 151 A.D.3d 1957, 1958, 57 N.Y.S.3d 861 [4th Dept. 2017], lv denied 29 N.Y.3d 1130, 64 N.Y.S.3d 680, 86 N.E.3d 572 [2017] ; People v. Cintron, 125 A.D.3d 1333, 1333, 2 N.Y.S.3d 715 [4th Dept. 2015], lv denied 25 N.Y.3d 1071, 12 N.Y.S.3d 622, 34 N.E.3d 373 [2015] ).
Nevertheless, we affirm. Even assuming, arguendo, that defendant preserved for our review his contention that County Court coerced him to plead guilty, we conclude that his contention "is belied by [his] statement during the plea proceeding that [he] was not threatened, coerced or otherwise influenced against [his] will into pleading guilty" ( People v. Beaty, 303 A.D.2d 965, 965, 755 N.Y.S.2d 911 [4th Dept. 2003], lv denied 100 N.Y.2d 559, 763 N.Y.S.2d 816, 795 N.E.2d 42 [2003] ; see People v. Strasser, 83 A.D.3d 1411, 1411, 919 N.Y.S.2d 454 [4th Dept. 2011] ). In addition, "the court did not coerce defendant into pleading guilty merely by informing him of the range of sentences that he faced if he proceeded to trial and was convicted" ( People v. Pitcher, 126 A.D.3d 1471, 1472, 6 N.Y.S.3d 352 [4th Dept. 2015], lv denied 25 N.Y.3d 1169, 15 N.Y.S.3d 301, 36 N.E.3d 104 [2015] ; see People v. Carr, 147 A.D.3d 1506, 1507, 47 N.Y.S.3d 561 [4th Dept. 2017], lv denied 29 N.Y.3d 1030, 62 N.Y.S.3d 298, 84 N.E.3d 970 [2017] ). Defendant also failed to establish that the court coerced him to plead guilty by denying his attorney's request to adjourn the trial. It is well settled that a " ‘court's exercise of discretion in denying a request for an adjournment will not be overturned absent a showing of prejudice’ " ( People v. Peterkin, 81 A.D.3d 1358, 1360, 921 N.Y.S.2d 744 [4th Dept. 2011], lv denied 17 N.Y.3d 799, 929 N.Y.S.2d 107, 952 N.E.2d 1102 [2011] ; see People v. Rogers, 103 A.D.3d 1150, 1151, 958 N.Y.S.2d 835 [4th Dept. 2013], lv denied 21 N.Y.3d 946, 968 N.Y.S.2d 8, 990 N.E.2d 142 [2013] ), and defendant failed to make such a showing here.
Defendant's contention that he was denied effective assistance of counsel survives his guilty plea only to the extent that he "contends that his plea was infected by the allegedly ineffective assistance and that he entered the plea because of his attorney's allegedly poor performance" ( People v. Bethune, 21 A.D.3d 1316, 1316, 801 N.Y.S.2d 196 [4th Dept. 2005], lv denied 6 N.Y.3d 752, 810 N.Y.S.2d 420, 843 N.E.2d 1160 [2005] ; see People v. Collins, 129 A.D.3d 1676, 1676–1677, 12 N.Y.S.3d 477 [4th Dept. 2015], lv denied 26 N.Y.3d 1038, 22 N.Y.S.3d 168, 43 N.E.3d 378 [2015] ). Defendant " ‘must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial’ " ( People v. Hernandez, 22 N.Y.3d 972, 975, 978 N.Y.S.2d 711, 1 N.E.3d 785 [2013], cert. denied ––– US ––––, 134 S.Ct 1900, 188 L.Ed.2d 930 [2014], quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 [1985] ; see People v. Bank, 28 N.Y.3d 131, 137–138, 42 N.Y.S.3d 651, 65 N.E.3d 680 [2016] ), and defendant failed to even allege that he would have proceeded to trial absent counsel's alleged deficiencies.
Contrary to defendant's further contention, the court properly refused to suppress his statements to the police. To the contrary, the court properly concluded that defendant "did not clearly communicate a desire to cease all questioning indefinitely" ( People v. Caruso, 34 A.D.3d 860, 863, 822 N.Y.S.2d 825 [3d Dept. 2006], lv denied 8 N.Y.3d 879, 832 N.Y.S.2d 491, 864 N.E.2d 621 [2007] ; see People v. Flowers, 122 A.D.3d 1396, 1397, 996 N.Y.S.2d 458 [4th Dept. 2014], lv denied 24 N.Y.3d 1219, 4 N.Y.S.3d 607, 28 N.E.3d 43 [2015] ), and thus did not make an " ‘unequivocal and unqualified’ " assertion of his right to remain silent ( People v. Zacher, 97 A.D.3d 1101, 1101, 948 N.Y.S.2d 509 [4th Dept. 2012], lv denied 20 N.Y.3d 1015, 960 N.Y.S.2d 359, 984 N.E.2d 334 [2013] ; see People v. Young, 153 A.D.3d 1618, 1619, 61 N.Y.S.3d 752 [4th Dept. 2017], lv denied 30 N.Y.3d 1065, 30 N.Y.3d 1065, 94 N.E.3d 497 [2017] ; People v. Cole, 59 A.D.3d 302, 302, 873 N.Y.S.2d 603 [1st Dept. 2009], lv. denied 12 N.Y.3d 924, 884 N.Y.S.2d 705, 912 N.E.2d 1086 [2009] ). Defendant failed to preserve for our review his contention that the court should have suppressed his statements based on unfulfilled promises made by the police inasmuch as he "failed to raise that specific contention in his motion papers or at the suppression hearing as a ground for suppressing his statements" ( People v. Schluter, 136 A.D.3d 1363, 1363, 24 N.Y.S.3d 478 [4th Dept. 2016], lv. denied 27 N.Y.3d 1138, 39 N.Y.S.3d 121, 61 N.E.3d 520 [2016] ; see People v. Keegan, 133 A.D.3d 1313, 1314, 20 N.Y.S.3d 796 [4th Dept. 2015], lv denied 27 N.Y.3d 1152, 39 N.Y.S.3d 386, 62 N.E.3d 126 [2016] ). In any event, our review of the record discloses " ‘no evidence of a promise that defendant would not be prosecuted or that he would receive lenient treatment’ " that might justify suppression of the ensuing statements ( People v. Sachs, 280 A.D.2d 966, 966, 721 N.Y.S.2d 214 [4th Dept. 2001], lv denied 96 N.Y.2d 834, 729 N.Y.S.2d 455, 754 N.E.2d 215 [2001], reconsideration denied 97 N.Y.2d 708, 739 N.Y.S.2d 109, 765 N.E.2d 312 [2002] ).
Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.