Opinion
1163 KA 20-00313
01-28-2022
The PEOPLE of the State of New York, Respondent, v. Alberto PINET, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CAITLIN M. CONNELLY OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CAITLIN M. CONNELLY OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, 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 his plea of guilty of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ). As defendant contends and the People correctly concede, defendant's waiver of the right to appeal is invalid (see 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] ; People v. Maddison , 191 A.D.3d 1393, 1393, 137 N.Y.S.3d 801 [4th Dept. 2021], lv denied 36 N.Y.3d 1121, 146 N.Y.S.3d 223, 169 N.E.3d 581 [2021] ; see also 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] ).
Defendant contends that the photo array identification procedure was unduly suggestive because he was the only person depicted "leaning back and staring in an intimidating manner." Defendant failed to preserve that contention for our review because he did not raise that specific ground at the suppression hearing (see People v. Goins , 191 A.D.3d 1399, 1399, 138 N.Y.S.3d 399 [4th Dept. 2021], lv denied 36 N.Y.3d 1120, 146 N.Y.S.3d 217, 169 N.E.3d 575 [2021] ; People v. Lundy , 178 A.D.3d 1389, 1390, 116 N.Y.S.3d 831 [4th Dept. 2019], lv denied 35 N.Y.3d 994, 125 N.Y.S.3d 628, 639, 149 N.E.3d 399, 400 [2020]). In any event, defendant's contention is without merit. The photo array depicts "six males of similar age, skin tone, hairstyle, and physical features" ( Goins , 191 A.D.3d at 1399, 138 N.Y.S.3d 399 ; see People v. Hoffman , 162 A.D.3d 1753, 1755, 79 N.Y.S.3d 824 [4th Dept. 2018], lv denied 32 N.Y.3d 1065, 89 N.Y.S.3d 119, 113 N.E.3d 953 [2018] ). We conclude that " ‘the subjects depicted in the photo array are sufficiently similar in appearance so that the viewer's attention is not drawn to any one photograph in such a way as to indicate that the police were urging a particular selection’ " ( People v. Plumley , 111 A.D.3d 1418, 1420, 975 N.Y.S.2d 309 [4th Dept. 2013], lv denied 22 N.Y.3d 1140, 983 N.Y.S.2d 499, 6 N.E.3d 618 [2014] ; see People v. Johnson , 194 A.D.3d 1410, 1411, 143 N.Y.S.3d 654 [4th Dept. 2021], lv denied 37 N.Y.3d 972, 150 N.Y.S.3d 702, 172 N.E.3d 814 [2021] ; Goins , 191 A.D.3d at 1399-1400, 138 N.Y.S.3d 399 ). Defendant contends that resentencing is required because County Court failed to conduct a sufficient inquiry into his request to represent himself. "[A]n application to proceed pro se must be denied unless defendant effectuates a knowing, voluntary and intelligent waiver of the right to counsel ... To this end, trial courts must conduct a ‘searching inquiry’ to clarify that defendant understands the ramifications of such a decision" ( People v. Stone , 22 N.Y.3d 520, 525, 983 N.Y.S.2d 454, 6 N.E.3d 572 [2014] ). We reject defendant's contention that the waiver of his right to counsel was invalid because the court failed to advise defendant during the colloquy regarding that waiver of the disadvantages of proceeding pro se at sentencing and of his sentencing exposure (see People v. Rogers , 186 A.D.3d 1046, 1048, 129 N.Y.S.3d 227 [4th Dept. 2020], lv denied 36 N.Y.3d 931, 135 N.Y.S.3d 340, 159 N.E.3d 1107 [2020] ). The Court of Appeals has consistently " ‘eschewed application of any rigid formula and endorsed the use of a nonformalistic, flexible inquiry’ " to ensure that a defendant's decision to forgo counsel is knowing, voluntary, and intelligent ( People v. Providence , 2 N.Y.3d 579, 583, 780 N.Y.S.2d 552, 813 N.E.2d 632 [2004], quoting People v. Arroyo , 98 N.Y.2d 101, 104, 745 N.Y.S.2d 796, 772 N.E.2d 1154 [2002] ; see People v. Smith , 92 N.Y.2d 516, 520-521, 683 N.Y.S.2d 164, 705 N.E.2d 1205 [1998] ). Here, upon our review of "the whole record, not simply ... [the] waiver colloquy" ( Providence , 2 N.Y.3d at 581, 780 N.Y.S.2d 552, 813 N.E.2d 632 ), we conclude that defendant made a knowing, voluntary, and intelligent waiver of his right to counsel (see generally People v. Chandler , 109 A.D.3d 1202, 1203, 971 N.Y.S.2d 778 [4th Dept. 2013], lv denied 23 N.Y.3d 1019, 992 N.Y.S.2d 801, 16 N.E.3d 1281 [2014] ).
Defendant also contends that resentencing is required because the court failed to provide him with a copy of his presentence report. A defendant who is representing himself has the right to examine and copy the presentence report prior to sentencing (see CPL 390.50 [2] [a] ; People v. Diaz , 34 N.Y.3d 1179, 1181, 123 N.Y.S.3d 64, 145 N.E.3d 947 [2020] ). Here, defendant failed to object to not having a copy of the presentence report at sentencing, and thus failed to preserve his contention for our review (see People v. Whilby , 188 A.D.3d 425, 426, 133 N.Y.S.3d 263 [1st Dept. 2020], lv denied 36 N.Y.3d 1060, 141 N.Y.S.3d 753, 165 N.E.3d 679 [2021] ). In any event, it is well established that "the mere absence of any reference to the presentence report at sentencing is ‘insufficient to rebut the presumption of regularity accorded to judicial proceedings’ " ( id. ). It is presumed that defendant had a copy of the presentence report, and thus there is no basis to remit for resentencing.
Finally, we reject defendant's contention that the sentence is unduly harsh and severe.