PEOPLE v. COBAUGH (2009)

 Defendant appeals from a judgment convicting her upon her plea of guilty of murder in the second degree (Penal Law § 125.25[1] ).   We agree with defendant that she did not validly waive her right to appeal.   Supreme Court “failed to engage[ ] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” (People v. Adams, 57 A.D.3d 1385, 871 N.Y.S.2d 567 [internal quotation marks omitted] ).   We nevertheless affirm the judgment of conviction.   We reject defendant's contention that the statements of the court at sentencing reflect its “misapprehension that it had no ability to exercise its discretion” in determining whether to impose a lesser sentence (People v. Domin, 284 A.D.2d 731, 733, 726 N.Y.S.2d 503, lv. denied 96 N.Y.2d 918, 732 N.Y.S.2d 634, 758 N.E.2d 660, rearg. granted on other grounds 291 A.D.2d 580, 736 N.Y.S.2d 921).   Rather, the court acknowledged that the People would be entitled to withdraw their consent to the plea agreement in the event that the court imposed a lesser sentence than that included in the plea bargain (see People v. Hillie, 281 A.D.2d 956, 722 N.Y.S.2d 842, lv. denied 96 N.Y.2d 830, 729 N.Y.S.2d 451, 754 N.E.2d 211).   Nor does the record support defendant's further contention that the People acted in bad faith or breached the plea agreement by declining to recommend a lesser sentence based upon defendant's cooperation with their investigation.   The record reflects that “in this case no promises were in fact breached” (People v. Linares, 174 A.D.2d 847, 847, 571 N.Y.S.2d 348, lv. denied 78 N.Y.2d 969, 574 N.Y.S.2d 949, 580 N.E.2d 421).

 We reject the contention of defendant that she was denied effective assistance of counsel on the ground that the attorney assigned as her lead counsel was not appointed from the roster of attorneys qualified for appointment as lead counsel in capital cases (see Judiciary Law § 35-b[5] [a] ).   Defendant has failed to demonstrate any prejudice resulting from the assignment (see People v. Owens, 187 Misc.2d 317, 319, 722 N.Y.S.2d 721;  see also People v. Muhammed, 183 Misc.2d 591, 594-599, 705 N.Y.S.2d 509).   In any event, the record establishes that defendant “receive[d] an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel” (People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265).   We further conclude that “this is one of those ‘rare occasions' where” the court's error, if any, in refusing to suppress evidence obtained through a grand jury subpoena issued in New Jersey may be considered harmless with respect to defendant's plea (People v. Strain, 238 A.D.2d 452, 453, 657 N.Y.S.2d 346, lv. denied 90 N.Y.2d 864, 661 N.Y.S.2d 191, 683 N.E.2d 1065).   The court properly determined that certain overbroad directives in the warrant to search defendant's New Jersey residence did not invalidate the entire warrant, which “was largely specific and based on probable cause” (People v. Brown, 96 N.Y.2d 80, 88, 725 N.Y.S.2d 601, 749 N.E.2d 170;  see People v. Couser, 303 A.D.2d 981, 982, 756 N.Y.S.2d 686).   Thus, the court properly refused to suppress the notebook that was seized in accordance with the particularized portion of the warrant (see Brown, 96 N.Y.2d at 85, 725 N.Y.S.2d 601, 749 N.E.2d 170). Finally, we reject the contention of defendant that her waiver of a jury trial by her oral plea of guilty violated N.Y. Constitution, article 1, § 2 (see People v. Hardy, 53 A.D.2d 647, 648, 384 N.Y.S.2d 496).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: