Opinion
1147 KA 18-00338
07-09-2021
The PEOPLE of the State of New York, Respondent, v. Michael ROMANOWSKI, Defendant-Appellant.
PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT. JEFFREY S. CARPENTER, DISTRICT ATTORNEY, HERKIMER (ROBERT R. CALLI, JR., OF COUNSEL), FOR RESPONDENT.
PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT.
JEFFREY S. CARPENTER, DISTRICT ATTORNEY, HERKIMER (ROBERT R. CALLI, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND DEJOSEPH, 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 grand larceny in the fourth degree ( Penal Law § 155.30 [1] ). Preliminarily, we agree with defendant that he did not validly waive his right to appeal (see People v. Thomas , 34 N.Y.3d 545, 564-566, 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. Powell , 140 A.D.3d 401, 401, 30 N.Y.S.3d 873 [1st Dept. 2016], lv denied 28 N.Y.3d 1074, 47 N.Y.S.3d 233, 69 N.E.3d 1029 [2016] ).
Defendant contends that County Court improperly denied his purported request to represent himself. Even assuming, arguendo, that defendant's contention survives his guilty plea (see People v. Best , 186 A.D.3d 845, 846, 130 N.Y.S.3d 461 [2d Dept. 2020], appeal dismissed 36 N.Y.3d 926, 135 N.Y.S.3d 662, 160 N.E.3d 320 [2020] ), we reject it on the merits because he did not " ‘clearly and unconditionally’ " seek to proceed pro se ( People v. LaValle , 3 N.Y.3d 88, 106, 783 N.Y.S.2d 485, 817 N.E.2d 341 [2004] ; see People v. Ramos , 35 A.D.3d 247, 247, 825 N.Y.S.2d 222 [1st Dept. 2006], lv denied 8 N.Y.3d 926, 834 N.Y.S.2d 516, 866 N.E.2d 462 [2007] ). Rather, defendant merely noted the existence of his right to represent himself. Noting the existence of a right is not equivalent to invoking that right, and given that defendant never actually invoked his right to represent himself, the court had no obligation to conduct "a full inquiry ... as to whether it should permit him to proceed pro se" ( People v. Richards , 118 A.D.3d 599, 600, 987 N.Y.S.2d 847 [1st Dept. 2014], lv denied 24 N.Y.3d 1088, 1 N.Y.S.3d 14, 25 N.E.3d 351 [2014] ; see People v. Johnson , 55 A.D.3d 328, 328, 864 N.Y.S.2d 429 [1st Dept. 2008], lv denied 11 N.Y.3d 926, 874 N.Y.S.2d 11, 902 N.E.2d 445 [2009] ).
Defendant further contends that defense counsel was ineffective for failing to craft a successful motion to dismiss the indictment under CPL 190.50 (5). To the extent it survives the guilty plea, we reject defendant's contention because he "failed to establish that a successful motion [on that basis] could have been made under these circumstances" ( People v. Simpson , 173 A.D.3d 1617, 1620, 102 N.Y.S.3d 357 [4th Dept. 2019], lv denied 34 N.Y.3d 954, 110 N.Y.S.3d 631, 134 N.E.3d 630 [2019] ; see People v. Larkins , 153 A.D.3d 1584, 1586, 62 N.Y.S.3d 648 [4th Dept. 2017], lv denied 30 N.Y.3d 1061, 71 N.Y.S.3d 11, 94 N.E.3d 493 [2017] ).
To the extent that consecutive sentencing was not mandated by Penal Law § 70.25 (2-a), we reject defendant's argument that his statutory minimum sentence is unduly harsh or severe insofar as it runs consecutively to his prior undischarged sentence or sentences (see People v. Nunez , 160 A.D.3d 1225, 1227, 75 N.Y.S.3d 336 [3d Dept. 2018] ). Finally, defendant's claim that his sentence constitutes cruel and unusual punishment is unpreserved and, in any event, is without merit (see People v. Verbitsky , 90 A.D.3d 1516, 1516, 934 N.Y.S.2d 888 [4th Dept. 2011], lv denied 19 N.Y.3d 868, 947 N.Y.S.2d 417, 970 N.E.2d 440 [2012] ).