Opinion
1217 KA 18-01855
02-11-2021
The PEOPLE of the State of New York, Respondent, v. Edward DOZIER, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIELLE E. PHILLIPS OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIELLE E. PHILLIPS OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, TROUTMAN, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree ( Penal Law §§ 110.00, 265.03 [3] ), defendant contends that he was deprived of effective assistance of counsel, that he did not validly waive his right to appeal, and that County Court erred in refusing to suppress a handgun seized by the police. We affirm.
Contrary to defendant's contention, the court engaged defendant in "an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" ( People v. Kastenhuber , 180 A.D.3d 1333, 1334, 115 N.Y.S.3d 730 [4th Dept. 2020] [internal quotation marks omitted]; see generally People v. Thomas , 34 N.Y.3d 545, 559-560, 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] ). Moreover, we conclude that the court did not conflate defendant's waiver of the right to appeal with those rights automatically forfeited by a guilty plea (see generally People v. Bradshaw , 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ). Contrary to defendant's further contention, the court was "not required to engage in any particular litany in order to obtain a valid waiver of the right to appeal ..., and the waiver is not invalid on the ground that the court did not specifically inform defendant that his general waiver of the right to appeal encompassed the court's suppression ruling[ ]" ( People v. Babagana , 176 A.D.3d 1627, 1627, 107 N.Y.S.3d 915 [4th Dept. 2019], lv denied 34 N.Y.3d 1075, 116 N.Y.S.3d 143, 139 N.E.3d 801 [2019] [internal quotation marks omitted]; see People v. Brand , 112 A.D.3d 1320, 1321, 976 N.Y.S.2d 906 [4th Dept. 2013], lv denied 23 N.Y.3d 961, 988 N.Y.S.2d 568, 11 N.E.3d 718 [2014] ). Nevertheless, we reiterate that the better practice is for the court to use the Model Colloquy, "which ‘neatly synthesizes ... the governing principles’ " ( People v. Dozier , 179 A.D.3d 1447, 1447, 119 N.Y.S.3d 318 [4th Dept. 2020], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 290, 147 N.E.3d 560 [2020], quoting Thomas , 34 N.Y.3d at 567, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; see NY Model Colloquies, Waiver of Right to Appeal).
Defendant's valid waiver of the right to appeal encompasses his contention that the court erred in refusing to suppress the physical evidence seized from him (see People v. Goodwin , 147 A.D.3d 1352, 1352, 46 N.Y.S.3d 448 [4th Dept. 2017], lv denied 29 N.Y.3d 1032, 62 N.Y.S.3d 301, 84 N.E.3d 973 [2017]; Brand , 112 A.D.3d at 1321, 976 N.Y.S.2d 906 ).
To the extent that defendant's claim that he was denied effective assistance of counsel at the suppression hearing survives his guilty plea and valid waiver of the right to appeal (see People v. Wingfield , 181 A.D.3d 1253, 1253-1254, 120 N.Y.S.3d 671 [4th Dept. 2020], lv denied 35 N.Y.3d 1050, 127 N.Y.S.3d 857, 151 N.E.3d 538 [2020], reconsideration denied 35 N.Y.3d 1098, 131 N.Y.S.3d 294, 155 N.E.3d 787 [2020] ; see generally People v. Yates , 173 A.D.3d 1849, 1850, 103 N.Y.S.3d 728 [4th Dept. 2019] ), we conclude that defendant received meaningful representation inasmuch as defense counsel obtained "an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel" ( People v. Ford , 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995] ; see People v. Corron , 180 A.D.3d 1330, 1331, 115 N.Y.S.3d 729 [4th Dept. 2020], lv denied 35 N.Y.3d 1026, 126 N.Y.S.3d 31, 149 N.E.3d 869 [2020] ; People v. Blarr [appeal No. 1], 149 A.D.3d 1606, 1606, 54 N.Y.S.3d 468 [4th Dept. 2017], lv denied 29 N.Y.3d 1123, 64 N.Y.S.3d 673, 86 N.E.3d 565 [2017] ).