PEOPLE v. LAFFERTY (2024)

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 burglary in the third degree (Penal Law § 140.20).

Initially we note that, although the People assert that defendant's plea is illegal and must be vacated, once a court has accepted a guilty plea and the defendant has begun to serve the resulting sentence, this Court has “no statutory or ‘inherent’ authority to vacate the judgment at the People's request, except in certain limited circumstances,” none of which are present here (People v. Moquin, 77 N.Y.2d 449, 451, 568 N.Y.S.2d 710, 570 N.E.2d 1059 [1991], rearg denied 78 N.Y.2d 952, 573 N.Y.S.2d 647, 578 N.E.2d 445 [1991]). Next, as defendant contends in his main brief and as the People correctly concede, defendant's waiver of the right to appeal is not valid inasmuch as the totality of the circumstances fails to reveal that defendant “understood the nature of the appellate rights being waived” (People v. Thomas, 34 N.Y.3d 545, 559, 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]; see People v. Harlee, 187 A.D.3d 1586, 1587, 131 N.Y.S.3d 760 [4th Dept. 2020], lv denied 36 N.Y.3d 929, 135 N.Y.S.3d 333, 159 N.E.3d 1100 [2020]).

Defendant contends in his main and pro se supplemental briefs that he was deprived of effective assistance of counsel because defense counsel allowed him to waive his right to a hearing pursuant to (People v. Outley, 80 N.Y.2d 702, 713, 594 N.Y.S.2d 683, 610 N.E.2d 356 [1993]) prior to County Court's imposition of an enhanced sentence even though the court had not warned defendant of the consequences of violating the conditions of the plea agreement. Even assuming, arguendo, that defendant's contention survives his guilty plea (see People v. McFarley, 144 A.D.3d 1521, 1522, 40 N.Y.S.3d 853 [4th Dept. 2016]), we conclude that, inasmuch as defendant's contention involves matters outside the record on appeal, it must be raised by way of a motion pursuant to CPL article 440 (see People v. Roach, 213 A.D.3d 1274, 1274, 181 N.Y.S.3d 505 [4th Dept. 2023]; People v. Espinal, 178 A.D.3d 517, 517, 111 N.Y.S.3d 843 [1st Dept. 2019], lv denied 34 N.Y.3d 1158, 120 N.Y.S.3d 265, 142 N.E.3d 1167 [2020]; People v. Black, 161 A.D.3d 997, 997-998, 73 N.Y.S.3d 762 [2d Dept. 2018], lv denied 32 N.Y.3d 935, 84 N.Y.S.3d 861, 109 N.E.3d 1161 [2018]). Defendant's contention in his main and pro se supplemental briefs that he was denied effective assistance of counsel at the time of the grand jury proceedings does not survive his guilty plea inasmuch as defendant failed to demonstrate that his “acceptance of the plea was infected by any ineffective assistance of counsel” (People v. Petgen, 55 N.Y.2d 529, 534-535, 450 N.Y.S.2d 299, 435 N.E.2d 669 [1982], rearg denied 57 N.Y.2d 674, 454 N.Y.S.2d 1032, 439 N.E.2d 1247 [1982]).

Defendant's contention in his main and pro se supplemental briefs with respect to his request for substitution of counsel “is encompassed by the plea ․ except to the extent that the contention implicates the voluntariness of the plea” (People v. Phillips, 56 A.D.3d 1163, 1164, 867 N.Y.S.2d 324 [4th Dept. 2008], lv denied 12 N.Y.3d 761, 876 N.Y.S.2d 712, 904 N.E.2d 849 [2009]; see People v. Williams, 6 A.D.3d 746, 747, 776 N.Y.S.2d 329 [3d Dept. 2004], lv denied 3 N.Y.3d 650, 782 N.Y.S.2d 421, 816 N.E.2d 211 [2004]). Moreover, defendant abandoned that request when he “decid[ed] ․ to plead guilty while still being represented by the same attorney” (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]; see People v. Munzert, 92 A.D.3d 1291, 1292, 938 N.Y.S.2d 491 [4th Dept. 2012]).

By pleading guilty, defendant forfeited his contention in his main and pro se supplemental briefs that he was denied the right to testify before the grand jury (see People v. Winchester, 38 A.D.3d 1336, 1337, 831 N.Y.S.2d 798 [4th Dept. 2007], lv denied 9 N.Y.3d 853, 840 N.Y.S.2d 779, 872 N.E.2d 892 [2007]; People v. Vincent, 305 A.D.2d 1108, 1109, 757 N.Y.S.2d 920 [4th Dept. 2003], lv denied 100 N.Y.2d 588, 764 N.Y.S.2d 399, 796 N.E.2d 491 [2003]). Defendant's sentence is not unduly harsh or severe. We have reviewed defendant's remaining contentions in his pro se supplemental brief and conclude that none warrants modification or reversal of the judgment.