Opinion
750 KA 16-02363
11-13-2020
The PEOPLE of the State of New York, Respondent, v. Donald J. HUNT, Defendant-appellant.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND BANNISTER, 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, inter alia, attempted rape in the first degree ( Penal Law §§ 110.00, 130.35 [1] ), attempted criminal sexual act in the first degree ( §§ 110.00, 130.50 [1] ), and burglary in the second degree (§ 140.25 [2] ). Initially, we agree with defendant that the purported waiver of the right to appeal is not enforceable inasmuch as the totality of the circumstances fails to reveal that defendant "understood the nature of the appellate rights being waived" ( People v. Thomas , 34 N.Y.3d 545, 559, 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] ; see People v. Youngs , 183 A.D.3d 1228, 1228, 121 N.Y.S.3d 701 [4th Dept. 2020], lv denied 35 N.Y.3d 1050, 127 N.Y.S.3d 826, 151 N.E.3d 507 [2020] ). County Court's oral colloquy "mischaracterized the waiver of the right to appeal, portraying it in effect as an ‘absolute bar’ to the taking of an appeal" ( People v. Cole , 181 A.D.3d 1329, 1330, 121 N.Y.S.3d 766 [4th Dept. 2020] ; see Thomas , 34 N.Y.3d at 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; Youngs , 183 A.D.3d at 1228-1229, 121 N.Y.S.3d 701 ). In explaining the waiver, the court suggested that defendant was ceding any right to challenge his guilty plea on appeal, but such an "improper description of the scope of the appellate rights relinquished by the waiver is refuted by ... precedent, whereby a defendant retains the right to appellate review of very selective fundamental issues" ( Thomas , 34 N.Y.3d at 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; see People v. Callahan , 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992] ). Moreover, the written waiver of the right to appeal does not "establish a valid waiver because it was not executed until sentencing" ( People v. Fox , 173 A.D.3d 1680, 1681, 99 N.Y.S.3d 906 [4th Dept. 2019], lv denied 33 N.Y.3d 1104, 106 N.Y.S.3d 685, 130 N.E.3d 1295 [2019] ). Even if the written waiver is considered, it did not contain clarifying language; instead, it perpetuated the mischaracterization that the waiver of the right to appeal constituted an absolute bar to the taking of a first-tier direct appeal and even incorrectly stated that the waiver foreclosed appellate review of nonwaivable issues, such as the voluntariness of the waiver, legality of the sentence, and defendant's competency to stand trial (see Thomas , 34 N.Y.3d at 564, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; Callahan , 80 N.Y.2d at 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 ). Where, as here, the "trial court has utterly ‘mischaracterized the nature of the right a defendant was being asked to cede,’ [this] ‘[C]ourt cannot be certain that the defendant comprehended the nature of the waiver of appellate rights’ " ( Thomas , 34 N.Y.3d at 565-566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ).
Defendant contends that his mental health history cast significant doubt on the voluntariness of his plea. However, " ‘[a] history of prior mental illness or treatment does not itself call into question [a] defendant's competence’ " ( People v. Jones , 175 A.D.3d 1845, 1846, 109 N.Y.S.3d 774 [4th Dept. 2019], lv denied 34 N.Y.3d 1078, 116 N.Y.S.3d 132, 139 N.E.3d 790 [2019] ; see People v. Young , 66 A.D.3d 1445, 1446, 885 N.Y.S.2d 860 [4th Dept. 2009], lv denied 13 N.Y.3d 912, 895 N.Y.S.2d 326, 922 N.E.2d 915 [2009] ), and there is nothing in the record here to suggest that defendant " ‘lacked the capacity to understand the plea proceeding’ " ( People v. Smith , 37 A.D.3d 1141, 1142, 829 N.Y.S.2d 375 [4th Dept. 2007], lv denied 9 N.Y.3d 851, 840 N.Y.S.2d 777, 872 N.E.2d 890 [2007], reconsideration denied 9 N.Y.3d 926, 844 N.Y.S.2d 181, 875 N.E.2d 900 [2007] ; see Jones , 175 A.D.3d at 1846, 109 N.Y.S.3d 774 ; Young , 66 A.D.3d at 1446, 885 N.Y.S.2d 860 ). Contrary to defendant's further contention, his "monosyllabic responses to [the court's] questions did not render the plea invalid" ( People v. Loper , 118 A.D.3d 1394, 1395, 988 N.Y.S.2d 744 [4th Dept. 2014], lv denied 25 N.Y.3d 1204, 16 N.Y.S.3d 526, 37 N.E.3d 1169 [2015] [internal quotation marks omitted]; see People v. Gordon , 98 A.D.3d 1230, 1230, 951 N.Y.S.2d 278 [4th Dept. 2012], lv denied 20 N.Y.3d 932, 957 N.Y.S.2d 692, 981 N.E.2d 289 [2012] ).
We also reject defendant's contention that the court erred in denying his motion to withdraw his plea without making a sufficient inquiry with respect to the grounds for that motion. "The court afforded defendant the requisite ‘reasonable opportunity to present his contentions’ in support of that motion ... and [it] did not abuse its discretion in concluding that no further inquiry was needed" ( People v. Strasser , 83 A.D.3d 1411, 1411, 919 N.Y.S.2d 454 [4th Dept. 2011], quoting People v. Tinsley , 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544 [1974] ). Additionally, defendant's belated and unsubstantiated assertion that the plea was the result of a failure to take prescribed medication is insufficient to support a motion to withdraw a plea (see People v. Gonzales , 231 A.D.2d 939, 940, 647 N.Y.S.2d 900 [4th Dept. 1996], lv denied 89 N.Y.2d 923, 654 N.Y.S.2d 725, 677 N.E.2d 297 [1996] ; People v. McNair, [Appeal No. 1], 186 A.D.2d 1089, 1089, 590 N.Y.S.2d 789 [4th Dept. 1992], lv denied 80 N.Y.2d 1028, 592 N.Y.S.2d 678, 607 N.E.2d 825 [1992] ).
Contrary to defendant's contention, his sentence is not unduly harsh or severe. Finally, we have reviewed defendant's remaining contention and conclude that it lacks merit.