PEOPLE v. THOMAS (2024)

Judgment, Supreme Court, New York County (Michael J. Obus, J., at plea;  Steven M. Statsinger, J., at sentencing), rendered April 7, 2021, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of six months incarceration and five years probation, unanimously affirmed.

Defendant failed to preserve his claim that his plea was invalid because he did not consent to the virtual plea proceeding or waive his right to be physically present (see People v. Bonilla, 219 A.D.3d 1094, 1095, 196 N.Y.S.3d 579 [3d Dept. 2023], lv denied 40 N.Y.3d 1038, 200 N.Y.S.3d 776, 223 N.E.3d 1252 [2023];  see generally People v. Osbourne, 223 A.D.3d 632, 633, 204 N.Y.S.3d 68 [1st Dept. 2024], lv denied 37 N.Y.3d 967, 148 N.Y.S.3d 758, 171 N.E.3d 234 [2021]), and it does not come within the narrow exception to the preservation requirement (see People v. Bush, 38 N.Y.3d 66, 70–71, 167 N.Y.S.3d 435, 187 N.E.3d 1047 [2022];  People v. Gaston, 209 A.D.3d 507, 507–508, 175 N.Y.S.3d 201 [1st Dept. 2022], lv denied 39 N.Y.3d 1110, 186 N.Y.S.3d 846, 208 N.E.3d 74 [2023]).  We decline to review this claim in the interest of justice.  As an alternative holding, we find that defendant, through his counsel, validly waived his right to be present and proceed virtually.

Defendant's further claim that the manner in which the virtual plea proceedings were conducted violated his right to confer with counsel privately is likewise unpreserved (see People v. Umali, 10 N.Y.3d 417, 423, 859 N.Y.S.2d 104, 888 N.E.2d 1046 [2008], cert denied 556 U.S. 1110, 129 S.Ct. 1595, 173 L.Ed.2d 685 [2009];  see also People v. Pinero, 143 A.D.3d 428, 430, 38 N.Y.S.3d 549 [1st Dept. 2016], lv denied 29 N.Y.3d 1000, 57 N.Y.S.3d 721, 80 N.E.3d 414 [2017]).  Defendant, who personally participated and asked questions numerous times throughout the proceeding, never asked to confer with counsel privately.  There is no indication in the record that the court would have prevented defendant from conferring with his attorney privately had he asked to do so (see People v. Diaz, 211 A.D.2d 402, 402, 621 N.Y.S.2d 36 [1st Dept. 1995], lv denied 85 N.Y.2d 972, 629 N.Y.S.2d 732, 653 N.E.2d 628 [1995]).