People v. Toledo ( 2016 )


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  •                           State of New York
    Supreme Court, Appellate Division
    Third Judicial Department
    Decided and Entered: November 17, 2016                   107498
    ________________________________
    THE PEOPLE OF THE STATE OF
    NEW YORK,
    Respondent,
    v                                     MEMORANDUM AND ORDER
    ROBERT TOLEDO,
    Appellant.
    ________________________________
    Calendar Date:   October 14, 2016
    Before:   McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.
    __________
    Thomas F. Garner, Middleburgh, for appellant, and appellant
    pro se.
    James E. Conboy, District Attorney, Fonda (Sarah J.
    Leszczynski of counsel), for respondent.
    __________
    McCarthy, J.P.
    Appeal from a judgment of the County Court of Montgomery
    County (Catena, J.), rendered October 27, 2014, convicting
    defendant upon his plea of guilty of the crime of criminal sale
    of a controlled substance in the third degree.
    In satisfaction of a four-count indictment, defendant
    pleaded guilty to criminal sale of a controlled substance in the
    third degree, admitting that he sold heroin in exchange for cash.
    Pursuant to the plea agreement, defendant waived his right to
    appeal and was sentenced, as a second felony drug offender, to a
    prison term of eight years with three years of postrelease
    supervision. Defendant now appeals.
    -2-                107498
    We affirm. Initially, contrary to defendant's contentions,
    his combined oral and written waiver of appeal was knowing,
    voluntary and intelligent (see People v Sanders, 25 NY3d 337,
    339-341 [2016]; People v Lopez, 6 NY3d 248, 256 [2009]; cf.
    People v Bradshaw, 18 NY3d 257, 265 [2011]). The record reflects
    that defendant was advised that an appeal waiver was a condition
    of the plea deal, was informed that he ordinarily retained the
    right to appeal his conviction and sentence "to a higher court"
    but that the People were requiring that he give up that right
    and, after conferring with counsel throughout the colloquy,
    defendant accepted this condition of the plea. The record belies
    his claim that County Court intimated that the waiver was an
    automatic consequence of his guilty plea, as the court completed
    its discussion of the trial-related rights automatically
    forfeited by the plea and then separately addressed the waiver of
    appeal, while specifying that it was a condition of the People's
    offer, without lumping it with the trial rights (see People v
    Lopez, 6 NY3d at 256-257; People v Forget, 136 AD3d 1115, 1116
    [2016], lv denied 28 NY3d 929 [2016]). Defendant then executed a
    written waiver after reviewing it with counsel that made clear
    that the waiver of appeal was separate and distinct from the
    rights automatically forfeited by his plea and reflected
    defendant's understanding of the waiver (see People v Lopez, 6
    NY3d at 256). Given the valid appeal waiver, defendant is
    precluded from challenging the negotiated sentence as harsh and
    excessive (see id. at 255-256).
    While defendant's challenge to the voluntariness of his
    plea survives his appeal waiver, it is unpreserved for our review
    in the absence of an appropriate postallocution motion (see CPL
    220.60 [2]; People v Williams, 27 NY3d 212, 214, 219-222 [2016];
    People v Blair, 136 AD3d 1105, 1006 [2016], lvs denied 27 NY3d
    1066, 1072 [2016]), and he did not make any statement during the
    plea allocution that triggered the narrow exception to the
    preservation requirement (see People v Lopez, 71 NY2d 662, 666-
    667 [1988]). Defendant's claim that County Court failed to
    adequately advise him of his constitutional, trial-related Boykin
    rights (see Boykin v Alabama, 
    395 US 238
    , 243 [1969]) that he was
    forfeiting by his plea was not preserved despite an opportunity
    to do so; moreover, the record reflects that he was fully advised
    and understood the waiver of his trial rights (see People v
    -3-                107498
    Conceicao, 26 NY3d 375, 379, 381-384 [2015]). Further, it was
    not necessary, as he now contends, that he personally recite the
    elements of the crime, as his affirmative responses to the
    court's questions were sufficient (see People v Griffith, 136
    AD3d 1114, 1115 [2016]).
    To the extent that defendant's ineffective assistance of
    counsel claims implicate the voluntariness of his plea, they
    survive his appeal waiver, but they are also not properly before
    us because he never moved to withdraw his plea on this ground
    (see People v Islam, 134 AD3d 1348, 1349 [2015]).1 While
    defendant had unsuccessfully requested the assignment of a new
    attorney in an earlier proceeding at which he rejected an initial
    plea offer, he chose at the next appearance to proceed with the
    plea and did not thereafter move to withdraw his plea. Moreover,
    defendant failed to articulate good cause to replace assigned
    counsel, such as a conflict of interest or irreconcilable
    differences, and we discern no abuse of discretion in County
    Court's denial of this request (see People v Smith, 18 NY3d 588,
    592-593 [2012]; People v Khan, 139 AD3d 1261, 1264 [2016], lvs
    denied 28 NY3d 932, 934 [2016]). In that regard, defendant's
    generalized complaint that counsel had not spent sufficient time
    with him did not establish good cause for substitution or compel
    further inquiry under these circumstances (see People v Mitchell,
    129 AD3d 1319, 1321 [2015], lv denied 26 NY3d 1041 [2015]).
    Contrary to his argument, defense counsel did not take a position
    that was adverse to him or oppose substitution of counsel so as
    to give rise to a conflict of interest (see People v Mitchell, 21
    NY3d 964, 967 [2013]; People v Tyler, 130 AD3d 1383, 1385
    [2015]). Rather, when the court inquired, counsel properly
    recounted the steps he and his associate counsel had taken in
    representing defendant, which was in response to defendant's
    request (see id.; see also People v Washington, 25 NY3d 1091,
    1095 [2015]; People v Nelson, 7 NY3d 883, 884 [2006]). Thus,
    1
    To the extent that defendant's pro se claims in part
    concern matters that are outside the record on appeal, they are
    more appropriately addressed in a motion to vacate pursuant to
    CPL article 440 (see People v Clark, 135 AD3d 1239, 1241 [2016],
    lv denied 27 NY3d 995 [2016]).
    -4-                  107498
    were we to address these issues, we would find that defendant
    received meaningful representation.2 Defendant's remaining
    claims, including those properly raised in his pro se brief, have
    been reviewed and determined to lack merit.
    Garry, Lynch, Devine and Clark, JJ., concur.
    ORDERED that the judgment is affirmed.
    ENTER:
    Robert D. Mayberger
    Clerk of the Court
    2
    Defendant's argument that counsel was ineffective for
    failing to raise statutory and constitutional speedy trial claims
    is unpreserved for our review as it was not raised in County
    Court. Moreover, his statutory speedy trial claim does not
    implicate the voluntariness of his plea and therefore does not
    survive his appeal waiver, and it was forfeited by his guilty
    plea (see People v Archie, 116 AD3d 1165, 1165 [2014]; People v
    Slingerland, 101 AD3d 1265, 1267 [2012], lv denied 20 NY3d 1104
    [2013]; People v Speranza, 96 AD3d 1164, 1165 [2012]).
    

Document Info

Docket Number: 107498

Judges: McCarthy, Garry, Lynch, Devine, Clark

Filed Date: 11/17/2016

Precedential Status: Precedential

Modified Date: 11/1/2024