Opinion
793 KA 20-00414
11-17-2023
The PEOPLE of the State of New York, Respondent, v. Daniel NEGRON, Defendant-Appellant.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CURRAN, MONTOUR, OGDEN, AND NOWAK, 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 criminal contempt in the first degree ( Penal Law § 215.51 [b] [v] ). We affirm. Initially, as defendant contends and the People correctly concede, defendant's waiver of the right to appeal is invalid because County Court "mischaracterized the nature of the right that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal, and there was no clarification that appellate review remained available for certain issues" ( People v. Hussein , 192 A.D.3d 1705, 1706, 141 N.Y.S.3d 379 [4th Dept. 2021], lv denied 37 N.Y.3d 965, 148 N.Y.S.3d 769, 171 N.E.3d 245 [2021] ; 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. Johnson , 192 A.D.3d 1494, 1495, 140 N.Y.S.3d 833 [4th Dept. 2021], lv denied 37 N.Y.3d 965, 148 N.Y.S.3d 770, 171 N.E.3d 246 [2021] ).
By pleading guilty before the court decided his pro se motion—which was not expressly adopted by defense counsel in the omnibus motion—to dismiss the indictment on the ground that the grand jury proceedings were tainted by prosecutorial misconduct, defendant abandoned that claim and is foreclosed from pursuing the merits thereof on appeal (see People v. Johnson , 195 A.D.3d 1420, 1422, 150 N.Y.S.3d 424 [4th Dept. 2021], lv denied 37 N.Y.3d 1146, 159 N.Y.S.3d 336, 346, 180 N.E.3d 500, 510 [2021]; People v. Hardy , 173 A.D.3d 1649, 1649-1650, 102 N.Y.S.3d 374 [4th Dept. 2019], lv denied 34 N.Y.3d 932, 109 N.Y.S.3d 756, 133 N.E.3d 463 [2019] ; see generally People v. Hansen , 95 N.Y.2d 227, 230, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ).
Defendant contends that he was denied effective assistance of counsel due to defense counsel's failure to seek dismissal of the indictment on the ground that the grand jury proceedings were infected by prosecutorial misconduct. Defendant's contention does not survive his guilty plea because defendant has not "demonstrate[d] that the plea bargaining process was infected by [the] allegedly ineffective assistance or that [he] entered the plea because of [his] attorney[’s] allegedly poor performance" ( People v. Jackson , 202 A.D.3d 1447, 1449, 161 N.Y.S.3d 618 [4th Dept. 2022], lv denied 38 N.Y.3d 951, 165 N.Y.S.3d 475, 185 N.E.3d 996 [2022] [internal quotation marks omitted]; see People v. Coleman , 178 A.D.3d 1377, 1378, 112 N.Y.S.3d 679 [4th Dept. 2019], lv denied 35 N.Y.3d 1026, 126 N.Y.S.3d 30, 149 N.E.3d 868 [2020] ). Defendant failed to show a reasonable probability that, but for defense counsel's alleged error, defendant would not have pleaded guilty and would have insisted on going to trial (see Coleman , 178 A.D.3d at 1378, 112 N.Y.S.3d 679 ; People v. Yates , 173 A.D.3d 1849, 1850, 103 N.Y.S.3d 728 [4th Dept. 2019] ).