PEOPLE v. STANFORD (2026)

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]). We affirm.

At the outset, although defendant purportedly waived his right to appeal, we conclude that there is no reason for us to address his contention in his main brief that the waiver is invalid inasmuch as defendant's substantive contentions—both in his main brief and in his pro se supplemental brief—would survive even a valid waiver of the right to appeal or are forfeited by the plea (see People v. Crosby, 195 A.D.3d 1602, 1603, 149 N.Y.S.3d 729 [4th Dept. 2021], lv denied 37 N.Y.3d 1026, 153 N.Y.S.3d 436, 175 N.E.3d 462 [2021]; People v. Steinbrecher, 169 A.D.3d 1462, 1463, 93 N.Y.S.3d 787 [4th Dept. 2019], lv denied 33 N.Y.3d 1108, 106 N.Y.S.3d 652, 130 N.E.3d 1262 [2019]; see generally People v. Seaberg, 74 N.Y.2d 1, 9, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989]).

Defendant contends in his main and pro se supplemental briefs that Supreme Court erred in denying his pro se motion seeking substitution of counsel. Initially, we note that his contention “ ‘is encompassed by the plea ․ except to the extent that the contention implicates the voluntariness of the plea’ ” (People v. Morris, 94 A.D.3d 1450, 1451, 942 N.Y.S.2d 725 [4th Dept. 2012], lv denied 19 N.Y.3d 976, 950 N.Y.S.2d 358, 973 N.E.2d 768 [2012]). Regardless, we conclude that defendant abandoned his request for new counsel “when he ‘decid[ed] ․ to plead guilty while still being represented by the same attorney’ ” (People v. Wellington, 169 A.D.3d 1440, 1441, 91 N.Y.S.3d 829 [4th Dept. 2019], lv denied 33 N.Y.3d 982, 101 N.Y.S.3d 262, 124 N.E.3d 751 [2019]; see Crosby, 195 A.D.3d at 1604, 149 N.Y.S.3d 729; People v. Barr, 169 A.D.3d 1427, 1427-1428, 92 N.Y.S.3d 803 [4th Dept. 2019], lv denied 33 N.Y.3d 1028, 102 N.Y.S.3d 526, 126 N.E.3d 176 [2019]). At the plea colloquy, defendant made no statements expressing dissatisfaction with counsel, and we note that at no time did the court issue an ultimatum to defendant to either “plead guilty with present counsel or proceed to trial with present counsel” (People v. Jones, 173 A.D.3d 1628, 1630, 102 N.Y.S.3d 365 [4th Dept. 2019]).

Defendant's contention in his pro se supplemental brief that the court erred in denying his challenge to the legal sufficiency of the evidence before the grand jury is forfeited by the guilty plea (see People v. Hill, 188 A.D.3d 1756, 1757, 132 N.Y.S.3d 911 [4th Dept. 2020], lv dismissed 37 N.Y.3d 965, 148 N.Y.S.3d 769, 171 N.E.3d 245 [2021], reconsideration denied 37 N.Y.3d 1096, 156 N.Y.S.3d 789, 178 N.E.3d 436 [2021]; People v. Rowe, 158 A.D.3d 1265, 1266-1267, 71 N.Y.S.3d 270 [4th Dept. 2018], lv denied 31 N.Y.3d 1017, 78 N.Y.S.3d 287, 102 N.E.3d 1068 [2018]; see generally People v. Hansen, 95 N.Y.2d 227, 233, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000]). Additionally, defendant's contention in his pro se supplemental brief that “he was denied[, inter alia,] due process based upon” instances of judicial misconduct was also “forfeited as a result of his guilty plea” (People v. Alsaifullah, 162 A.D.3d 1483, 1486, 77 N.Y.S.3d 811 [4th Dept. 2018], lv denied 32 N.Y.3d 1062, 89 N.Y.S.3d 117, 113 N.E.3d 951 [2018]), and, regardless, defendant failed to preserve that contention for our review (see People v. Tohafijian, 216 A.D.3d 1410, 1413, 188 N.Y.S.3d 305 [4th Dept. 2023], lv denied 40 N.Y.3d 937, 194 N.Y.S.3d 755, 215 N.E.3d 1196 [2023]; People v. Price, 129 A.D.3d 1484, 1484, 10 N.Y.S.3d 375 [4th Dept. 2015], lv denied 26 N.Y.3d 970, 18 N.Y.S.3d 607, 40 N.E.3d 585 [2015]; People v. Brown, 120 A.D.3d 1545, 1545-1546, 992 N.Y.S.2d 591 [4th Dept. 2014], lv denied 24 N.Y.3d 1082, 1 N.Y.S.3d 9, 25 N.E.3d 346 [2014]).

We have considered the remaining contention in defendant's pro se supplemental brief, and we conclude that it does not warrant modification or reversal of the judgment.