Opinion
366 KA 20-00785
06-11-2021
The PEOPLE of the State of New York, Respondent, v. Victor E. JOHNSON, Sr., Defendant-Appellant. (Appeal No. 2.)
ROBERT M. GRAFF, LOCKPORT, FOR DEFENDANT-APPELLANT. VICTOR E. JOHNSON, SR., DEFENDANT-APPELLANT PRO SE. BRIAN D. SEAMAN, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
ROBERT M. GRAFF, LOCKPORT, FOR DEFENDANT-APPELLANT.
VICTOR E. JOHNSON, SR., DEFENDANT-APPELLANT PRO SE.
BRIAN D. SEAMAN, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, TROUTMAN, WINSLOW, 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 attempted robbery in the second degree ( Penal Law §§ 110.00, 160.10 [2] [a] ). We affirm.
We first address defendant's contentions in his main brief. Initially, we agree with defendant that his purported waiver of the right to appeal is invalid (see People v. Thomas , 34 N.Y.3d 545, 565-566, 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] ; People v. Mazaika , 191 A.D.3d 1419, 1419, 138 N.Y.S.3d 416 [4th Dept. 2021] ).
Defendant contends that Supreme Court erred in refusing to suppress statements that he made to a police officer because such evidence was improperly obtained as a result of an unlawful vehicle stop. Defendant's contention is not preserved for our review inasmuch as he did not raise that specific contention in his motion papers or at the suppression hearing as a ground for suppressing his statements (see People v. Witt , 129 A.D.3d 1449, 1449, 11 N.Y.S.3d 767 [4th Dept. 2015], lv denied 26 N.Y.3d 937, 17 N.Y.S.3d 100, 38 N.E.3d 846 [2015] ), nor did the court expressly decide the question raised on appeal (see CPL 470.05 [2] ; People v. Graham , 25 N.Y.3d 994, 997, 10 N.Y.S.3d 172, 32 N.E.3d 387 [2015] ; People v. Turriago , 90 N.Y.2d 77, 83-84, 659 N.Y.S.2d 183, 681 N.E.2d 350 [1997], rearg denied 90 N.Y.2d 936, 664 N.Y.S.2d 274, 686 N.E.2d 1369 [1997] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ).
Defendant further contends that the court erred in refusing to suppress the statements that he made to the officer outside of his vehicle because he was in custody at that time but had not been advised of his Miranda rights. We reject that contention inasmuch as "the evidence at the Huntley hearing establishes that defendant was not in custody when he made the statements, and thus Miranda warnings were not required" ( People v. Bell-Scott , 162 A.D.3d 1558, 1559, 78 N.Y.S.3d 846 [4th Dept. 2018], lv denied 32 N.Y.3d 1169, 97 N.Y.S.3d 614, 121 N.E.3d 242 [2019] ; see People v. Clark , 136 A.D.3d 1367, 1368, 25 N.Y.S.3d 485 [4th Dept. 2016], lv denied 27 N.Y.3d 1130, 39 N.Y.S.3d 112, 61 N.E.3d 511 [2016] ; see generally People v. Yukl , 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172 [1969], cert denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89 [1970] ). "The suppression court's credibility determinations and choice between conflicting inferences to be drawn from the proof are granted deference and will not be disturbed unless unsupported by the record" ( People v. Hale , 130 A.D.3d 1540, 1541, 14 N.Y.S.3d 603 [4th Dept. 2015], lv denied 26 N.Y.3d 1088, 23 N.Y.S.3d 645, 44 N.E.3d 943 [2015], reconsideration denied 27 N.Y.3d 998, 38 N.Y.S.3d 108, 59 N.E.3d 1220 [2016] [internal quotation marks omitted]) and, here, we conclude that there is no basis to disturb the court's determination to credit the testimony of the officer over defendant's testimony (see People v. Fioretti , 155 A.D.3d 1662, 1664, 65 N.Y.S.3d 376 [4th Dept. 2017], lv denied 30 N.Y.3d 1104, 77 N.Y.S.3d 3, 101 N.E.3d 389 [2018] ; People v. Witherspoon , 66 A.D.3d 1456, 1458, 885 N.Y.S.2d 829 [4th Dept. 2009], lv denied 13 N.Y.3d 942, 895 N.Y.S.2d 333, 922 N.E.2d 922 [2010] ).
We also conclude that, "by pleading guilty, defendant forfeited his challenge to the court's Sandoval ruling[s]" ( People v. Smith , 164 A.D.3d 1621, 1622, 84 N.Y.S.3d 287 [4th Dept. 2018], lv denied 32 N.Y.3d 1177, 97 N.Y.S.3d 608, 121 N.E.3d 235 [2019] ).
Defendant further contends that the court erred in refusing to entertain his pro se motions to withdraw his plea. We reject that contention. "Because a criminal defendant is not entitled to hybrid representation, ... the decision to entertain [pro se] motions [filed by a represented defendant] lies within the sound discretion of the trial court" ( People v. Rodriguez , 95 N.Y.2d 497, 500, 719 N.Y.S.2d 208, 741 N.E.2d 882 [2000] ; see People v. Alsaifullah , 96 A.D.3d 1103, 1103, 946 N.Y.S.2d 273 [3d Dept. 2012], lv denied 19 N.Y.3d 994, 951 N.Y.S.2d 470, 975 N.E.2d 916 [2012] ). Here, we conclude that the court did not abuse its discretion in refusing to entertain the pro se motions (see Rodriguez , 95 N.Y.2d at 502-503, 719 N.Y.S.2d 208, 741 N.E.2d 882 ; People v. Fowler , 136 A.D.3d 1395, 1395, 24 N.Y.S.3d 479 [4th Dept. 2016], lv denied 27 N.Y.3d 996, 38 N.Y.S.3d 106, 59 N.E.3d 1218 [2016], reconsideration denied 27 N.Y.3d 1132, 39 N.Y.S.3d 114, 61 N.E.3d 513 [2016] ). Contrary to defendant's related contention, we conclude that the court did not abuse its discretion in denying defense counsel's request for a further adjournment of sentencing to afford him an opportunity to review defendant's pro se motions (see People v. Spears , 24 N.Y.3d 1057, 1058-1060, 999 N.Y.S.2d 818, 24 N.E.3d 1082 [2014] ; People v. Shanley , 189 A.D.3d 2108, 2108, 134 N.Y.S.3d 856 [4th Dept. 2020], lv denied 36 N.Y.3d 1100, 144 N.Y.S.3d 117, 167 N.E.3d 1252 [2021] ). Defendant's challenges in his main and pro se supplemental briefs to the voluntariness of his plea are thus not preserved for our review (see People v. Carroll , 172 A.D.3d 1821, 1822, 99 N.Y.S.3d 520 [3d Dept. 2019], lv denied 34 N.Y.3d 929, 109 N.Y.S.3d 743, 133 N.E.3d 448 [2019] ; People v. Horton , 166 A.D.3d 1226, 1227, 86 N.Y.S.3d 352 [3d Dept. 2018] ), and we conclude that this case does not fall within the narrow exception to the preservation requirement (see People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). We decline to exercise our power to review defendant's challenges as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ). In light of our determination, there is no need to address defendant's remaining contention in his main brief. Finally, we have considered the remaining contentions in defendant's pro se supplemental brief and conclude that they are either without merit or involve matters outside the record.