Opinion
1287 KA 17–01542
01-31-2020
The PEOPLE of the State of New York, Respondent, v. Richard LOVE, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. MCDERMOTT OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (NICOLE K. INTSCHERT OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. MCDERMOTT OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (NICOLE K. INTSCHERT OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND WINSLOW, 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 a plea of guilty of, inter alia, two counts of criminal possession of a forged instrument in the second degree ( Penal Law § 170.25 ). Contrary to defendant's contention, his waiver of the right to appeal is valid inasmuch as County Court informed defendant, before he entered his plea, that the waiver would be a condition of the plea (cf. People v. Blackwell , 129 A.D.3d 1690, 1690, 12 N.Y.S.3d 425 [4th Dept. 2015], lv denied 26 N.Y.3d 926, 17 N.Y.S.3d 89, 38 N.E.3d 835 [2015] ), and the court assured itself "prior to the completion of the plea proceeding ... that defendant adequately understood the right that [defendant] was forgoing" ( People v. Bradshaw , 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ).
Although defendant's contention that his plea "was coerced by statements made by the court ... ‘survives even a valid waiver of the right to appeal’ " ( People v. Bellamy , 170 A.D.3d 1652, 1653, 94 N.Y.S.3d 909 [4th Dept. 2019] ; see People v. Boyde , 122 A.D.3d 1302, 1302, 995 N.Y.S.2d 428 [4th Dept. 2014] ; People v. Gast , 114 A.D.3d 1270, 1270, 980 N.Y.S.2d 221 [4th Dept. 2014], lv denied 22 N.Y.3d 1198, 986 N.Y.S.2d 419, 9 N.E.3d 914 [2014] ), that contention is not preserved for our review "because [defendant] failed to move to withdraw his plea or vacate the judgment of conviction" ( Bellamy , 170 A.D.3d at 1653, 94 N.Y.S.3d 909 ; see Gast , 114 A.D.3d at 1270, 980 N.Y.S.2d 221 ). We decline to exercise our power to address that contention as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ).
Defendant further contends that his decision to enter the plea near the end of the jury trial "was largely impacted by the court's refusal to allow him to get a new attorney" in the middle of his trial. We thus conclude that defendant's contention that the court erred in refusing his request to grant a mistrial in order for him to retain a new attorney is not foreclosed by the valid waiver of the right to appeal or forfeited by his plea (see People v. Jones , 173 A.D.3d 1628, 1630, 102 N.Y.S.3d 365 [4th Dept. 2019] ; People v. Booker , 133 A.D.3d 1326, 1327, 20 N.Y.S.3d 832 [4th Dept. 2015], lv denied 27 N.Y.3d 1149, 39 N.Y.S.3d 383, 62 N.E.3d 123 [2016] ; cf. People v. Barr , 169 A.D.3d 1427, 1427, 92 N.Y.S.3d 803 [4th Dept. 2019], lv denied 33 N.Y.3d 1028, 102 N.Y.S.3d 526, 126 N.E.3d 176 [2019] ). Although defendant's contention was not properly preserved for our review (see People v. Hobart , 286 A.D.2d 916, 916, 731 N.Y.S.2d 127 [4th Dept. 2001], lv denied 97 N.Y.2d 683, 738 N.Y.S.2d 298, 764 N.E.2d 402 [2001] ), we nevertheless exercise our power to address that contention as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ). In our view, defendant's contention lacks merit. We conclude that, " ‘[a]t most, defendant's allegations evinced disagreements with counsel over strategy ..., which were not sufficient grounds for substitution’ " ( People v. Larkins , 128 A.D.3d 1436, 1440, 8 N.Y.S.3d 755 [4th Dept. 2015], lv denied 27 N.Y.3d 1001, 38 N.Y.S.3d 110, 59 N.E.3d 1222 [2016] ; see People v. Chess , 162 A.D.3d 1577, 1579, 79 N.Y.S.3d 433 [4th Dept. 2018] ; see generally People v. Linares , 2 N.Y.3d 507, 511–512, 780 N.Y.S.2d 529, 813 N.E.2d 609 [2004] ).
Defendant further contends that he was penalized for asserting his right to a trial. Although that contention is not precluded by the valid waiver of the right to appeal (see People v. Povoski , 55 A.D.3d 1221, 1222, 864 N.Y.S.2d 586 [4th Dept. 2008], lv denied 11 N.Y.3d 929, 874 N.Y.S.2d 14, 902 N.E.2d 448 [2009] ), defendant failed to preserve that contention for our review (see People v. Hurley , 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 553 N.E.2d 1017 [1990] ; People v. Green , 35 A.D.3d 1211, 1211, 825 N.Y.S.2d 891 [4th Dept. 2006], lv denied 8 N.Y.3d 985, 838 N.Y.S.2d 488, 869 N.E.2d 664 [2007] ), and 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's final contention is that the bargained-for sentence is unduly harsh and severe. We do not address that contention inasmuch as defendant, by "waiving the right to appeal in connection with a negotiated plea and sentence," has "relinquish[ed] the right to invoke" this Court's interest of justice jurisdiction to modify that sentence ( People v. Lopez , 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).