Opinion
06-14-2024
The PEOPLE of the State of New York, Respondent, v. Jeffrey S. WILLIAMS, Defendant-Appellant.
THOMAS L. PELYCH, HORNELL, FOR DEFENDANT-APPELLANT. JEFFREY S. WILLIAMS, DEFENDANT-APPELLANT PRO SE. CHRISTINE K. CALLANAN, ACTING DISTRICT ATTORNEY, LYONS (R. MICHAEL TANTILLO OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Wayne County Court (Richard M. Healy, J.), rendered March 22, 2023. The judgment convicted defendant, upon a guilty plea, of aggravated unlicensed operation of a motor vehicle in the first degree.
THOMAS L. PELYCH, HORNELL, FOR DEFENDANT-APPELLANT.
JEFFREY S. WILLIAMS, DEFENDANT-APPELLANT PRO SE.
CHRISTINE K. CALLANAN, ACTING DISTRICT ATTORNEY, LYONS (R. MICHAEL TANTILLO OF COUNSEL), FOR RESPONDENT.
PRESENT: LINDLEY, J.P., MONTOUR, OGDEN, DELCONTE, AND HANNAH, 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 aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511 [3] [a] [i]).
[1, 2] Defendant knowingly, voluntarily, and intelligently waived his right to appeal (see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]), and the valid waiver encompasses his challenge in his main brief to County Court’s suppression ruling (see People v. Sanders, 25 N.Y.3d 337, 342, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015]; People v. Snyder, 151 A.D.3d 1939, 1939, 54 N.Y.S.3d 899 [4th Dept. 2017]), his non-jurisdictional challenge in his pro se supplemental brief to the residency of the assistant district attorneys who pursued the charges against him (see People v. Jackson, 129 A.D.3d 1342, 1343, 10 N.Y.S.3d 368 [3d Dept. 2015]; see generally Matter of Haggerty v. Himelein, 89 N.Y.2d 431, 437 n., 654 N.Y.S.2d 705, 677 N.E.2d 276 [1997]), his evidentiary chal- lenge in his pro se supplemental brief with respect to the grand jury proceeding (see People v. Frasier, 105 A.D.3d 1079, 1080, 962 N.Y.S.2d 787 [3d Dept. 2013], lv denied 22 N.Y.3d 1088, 981 N.Y.S.2d 673, 4 N.E.3d 975 [2014]), and his contention in his pro se supplemental brief that he was denied effective assistance of his counsel inasmuch as he does not claim that defense counsel’s performance affected the voluntariness of his plea (see People v. Wood, 217 A.D.3d 1407, 1409, 190 N.Y.S.3d 761 [4th Dept. 2023], lv denied 40 N.Y.3d 1000, 197 N.Y.S.3d 101, 219 N.E.3d 862 [2023]; People v. Walker, 189 A.D.3d 1619, 1619-1620, 138 N.Y.S.3d 591 [2d Dept. 2020], lv dismissed, 37 N.Y.3d 975, 150 N.Y.S.3d 687, 172 N.E.3d 800 [2021]). We note that, although the written waiver form executed by defendant incorrectly portrays the waiver as an absolute bar to the taking of an appeal (see generally People v. Thomas, 34 N.Y.3d 545, 564-567, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied — U.S. —, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020]), the "oral colloquy, which followed the appropriate model colloquy, cured that defect" (People v. Clark, 221 A.D.3d 1550, 1551, 198 N.Y.S.3d 462 [4th Dept. 2023]; see People v. Yearn, 227 A.D.3d 1517, 1518-19, 209 N.Y.S.3d 255 [4th Dept. 2024]).
[3, 4] Although defendant’s contention in his main brief that his plea was rendered involuntary due to the duress from his continued incarceration survives even a valid waiver of the right to appeal (see People v. Dozier, 59 A.D.3d 987, 987, 872 N.Y.S.2d 317 [4th Dept. 2009], lv denied 12 N.Y.3d 815, 881 N.Y.S.2d 23, 908 N.E.2d 931 [2009]), defendant "failed to preserve [that contention] for our review by way of a motion to withdraw his plea or to vacate the judgment of conviction on that ground" (People v. Thigpen-Williams, 198 A.D.3d 1366, 1367, 152 N.Y.S.3d 663 [4th Dept. 2021]). We decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]).
We have considered the remaining contentions in defendant’s pro se supplemental brief, and we conclude that none warrants modification or reversal of the judgment.