Opinion
2017-00895 2017-00896 Ind. Nos. 15-748, 15-685
03-13-2019
The PEOPLE, etc., Respondent, v. Sherman E. BROWN, Appellant.
Michele Marte–Indzonka, Newburgh, NY, for appellant, and appellant pro se. David M. Hoovler, District Attorney, Middletown, N.Y. (Robert H. Middlemiss of counsel), for respondent.
Michele Marte–Indzonka, Newburgh, NY, for appellant, and appellant pro se.
David M. Hoovler, District Attorney, Middletown, N.Y. (Robert H. Middlemiss of counsel), for respondent.
MARK C. DILLON, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ.
DECISION & ORDERAppeals by the defendant from two judgments of the County Court, Orange County (Robert H. Freehill, J.), both rendered January 3, 2017, convicting him of criminal possession of a controlled substance in the fourth degree under Indictment No. 15–748, and criminal possession of a controlled substance in the fourth degree under Indictment No. 15–685, upon his pleas of guilty, and imposing sentences. ORDERED that the judgments are affirmed.
The defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Sanders , 25 N.Y.3d 337, 341, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Lopez , 6 N.Y.3d 248, 254, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Coachman , 154 A.D.3d 957, 957, 63 N.Y.S.3d 94 ).
The defendant's contention that his pleas were not knowing, voluntary, and intelligent survives his valid appeal waiver (see People v. Fontanet , 126 A.D.3d 723, 2 N.Y.S.3d 371 ). However, the defendant's contention is unpreserved for appellate review, since he did not move to withdraw his pleas or otherwise raise this issue before the County Court (see People v. Ellis , 142 A.D.3d 509, 510, 35 N.Y.S.3d 920 ; People v. Gomez , 114 A.D.3d 701, 701, 979 N.Y.S.2d 828 ). In any event, this contention is without merit. The defendant acknowledged, inter alia, that he understood the acts he was being charged with; he did not need additional time to discuss the elements of the offenses or possible defenses with counsel; he was not under the influence of any alcohol or drugs that would affect his ability to knowingly participate in the proceedings; he was satisfied with his legal representation; he understood the rights he was forfeiting by pleading guilty; no one forced, threatened, or coerced him to plead guilty against his will; and he was pleading guilty voluntarily.
By pleading guilty, the defendant forfeited any claims of ineffective assistance of counsel that did not directly involve the plea-negotiation process (see People v. Fakhoury , 103 A.D.3d 664, 959 N.Y.S.2d 269 ; People v. Opoku , 61 A.D.3d 705, 876 N.Y.S.2d 493 ). Moreover, the defendant's valid waiver of his right to appeal precludes review of his claim of ineffective assistance of counsel, except to the extent that the alleged ineffective assistance of counsel may have affected the voluntariness of his pleas (see People v. Weston , 145 A.D.3d 746, 747, 43 N.Y.S.3d 413 ; People v. Opoku , 61 A.D.3d 705, 876 N.Y.S.2d 493 ). To the extent that the defendant contends that the ineffective assistance of counsel affected the voluntariness of his pleas, the record demonstrates that the defendant received an advantageous plea, and nothing in the record casts doubt on the apparent effectiveness of counsel (see People v. Soria , 99 A.D.3d 1027, 1028, 952 N.Y.S.2d 300 ; People v. Yarborough , 83 A.D.3d 875, 875, 920 N.Y.S.2d 681 ). Furthermore, the defendant's claim of ineffective assistance of counsel is refuted by the record of the plea proceeding, in which the defendant acknowledged that he had enough time to discuss the matter with his attorney and was satisfied with his attorney's representation, that he had not been forced into pleading guilty, and that he was entering the plea freely and voluntarily (see People v. Trimble , 137 A.D.3d 1309, 27 N.Y.S.3d 392 ; People v. Soria , 99 A.D.3d at 1028, 952 N.Y.S.2d 300 ). Nothing that occurred during the plea allocution called into question the voluntariness of the defendant's plea (see People v. Trimble , 137 A.D.3d 1309, 27 N.Y.S.3d 392 ; People v. Wright , 95 A.D.3d 1046, 1047, 943 N.Y.S.2d 766 ).
Contrary to the defendant's contention, raised in his pro se supplemental brief, his challenge to the felony complaint is academic, since the felony complaint was superseded by an indictment (see People v. Barnett , 108 A.D.3d 638, 638, 968 N.Y.S.2d 393 ). The defendant's contentions, also raised in his pro se supplemental brief, that the evidence before the grand jury was legally insufficient and that the police lacked reasonable suspicion to support the stop of the vehicle driven by the defendant were forfeited by his pleas of guilty (see People v. Hansen , 95 N.Y.2d 227, 233, 715 N.Y.S.2d 369, 738 N.E.2d 773 ; People v. Fernandez , 67 N.Y.2d 686, 688, 499 N.Y.S.2d 919, 490 N.E.2d 838 ; People v. Woods , 115 A.D.3d 997, 998, 982 N.Y.S.2d 180 ; People v. Devodier , 102 A.D.3d 884, 885, 958 N.Y.S.2d 220 ; People v. Adams , 31 A.D.3d 1063, 818 N.Y.S.2d 847 ).
The defendant's remaining contentions, raised in his pro se supplemental brief, are without merit.
DILLON, J.P., COHEN, DUFFY and CHRISTOPHER, JJ., concur.