PEOPLE v. ROHADFOX (2019)

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, inter alia, criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06[5]).  Contrary to defendant's contention, the fact that he was proceeding pro se when he pleaded guilty and waived his right to appeal does not render the waiver invalid.  “A waiver of the right to appeal may be elicited as a condition of a plea bargain ․, but it must be knowingly, voluntarily and intelligently entered into by the accused” (People v. Johnson, 14 N.Y.3d 483, 486, 903 N.Y.S.2d 299, 929 N.E.2d 361 [2010]).  In determining the validity of a waiver of the right to appeal, a court must consider “all the relevant facts and circumstances surrounding the waiver, including the nature and terms of the agreement and the age, experience and background of the accused” (People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989];  see People v. Sanders, 25 N.Y.3d 337, 340, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015];  see generally People v. Smith, 164 A.D.3d 1621, 1621–1622, 84 N.Y.S.3d 287 [4th Dept. 2018], lv denied 32 N.Y.3d 1177, 97 N.Y.S.3d 608, 121 N.E.3d 235 [2019]).  Here, we conclude that Supreme Court engaged defendant “in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” (People v. Carr, 147 A.D.3d 1506, 1506, 47 N.Y.S.3d 561 [4th Dept. 2017], lv denied 29 N.Y.3d 1030, 62 N.Y.S.3d 298, 84 N.E.3d 970 [2017] [internal quotation marks omitted];  see People v. Brown, 166 A.D.3d 1579, 1579, 85 N.Y.S.3d 908 [4th Dept. 2018], lv denied 32 N.Y.3d 1169, 97 N.Y.S.3d 630, 121 N.E.3d 257 [2019]).  The record establishes that defendant had “ ‘a full appreciation of the consequences’ ” of the waiver (People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011]), particularly considering the thorough discussion between defendant and the court regarding the nature and terms of the agreement, including the waiver and the negotiated sentence, as well as defendant's age, his level of education, and his background, which included experience in the criminal justice system representing himself (see Sanders, 25 N.Y.3d at 342, 12 N.Y.S.3d 593, 34 N.E.3d 344).  Contrary to defendant's further contentions, the record establishes that, before defendant pleaded guilty, the court mentioned that the waiver would be a condition of the plea bargain (cf. People v. Willis, 161 A.D.3d 1584, 1584, 77 N.Y.S.3d 259 [4th Dept. 2018];  People v. Blackwell, 129 A.D.3d 1690, 1690, 12 N.Y.S.3d 425 [4th Dept. 2015], lv denied 26 N.Y.3d 926, 17 N.Y.S.3d 89, 38 N.E.3d 835 [2015]), and “[t]he fact that the appeal waiver was not reduced to writing is of no moment where, as here, the oral waiver was adequate” (Smith, 164 A.D.3d at 1621, 84 N.Y.S.3d 287).

We conclude that the valid waiver of the right to appeal forecloses our review of defendant's challenge to the court's adverse suppression ruling (see Sanders, 25 N.Y.3d at 342, 12 N.Y.S.3d 593, 34 N.E.3d 344;  People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 [1999]).

Defendant contends that, while he was represented by defense counsel and before he was permitted to proceed pro se, the court erred in failing to make appropriate inquires into his requests for substitution of counsel and for an opportunity to retain counsel of his own choosing.  Defendant also contends that the court erred in permitting him to proceed pro se.  Defendant does not, however, assert that those alleged errors affected the voluntariness of the plea, which he sought mid-trial after hearing the evidence against him and which he entered following thorough discussions with the court (see People v. Richardson, 173 A.D.3d 1859, 1860, 104 N.Y.S.3d 478 [4th Dept. 2019]).  Moreover, any such assertion is not supported by the record (see People v. Doyle, 82 A.D.3d 564, 564, 918 N.Y.S.2d 482 [1st Dept. 2011], lv denied 17 N.Y.3d 805, 929 N.Y.S.2d 565, 953 N.E.2d 803 [2011]).  Thus, our review of defendant's contentions is precluded by the valid waiver of the right to appeal (see Richardson, 173 A.D.3d at 1860, 104 N.Y.S.3d 478;  People v. Gordon, 89 A.D.3d 1466, 1466, 932 N.Y.S.2d 410 [4th Dept. 2011], lv denied 18 N.Y.3d 957, 944 N.Y.S.2d 486, 967 N.E.2d 711 [2012];  Doyle, 82 A.D.3d at 564, 918 N.Y.S.2d 482).

Defendant did not preserve for our review his additional contention that before sentencing the People failed to file a CPL 400.21 statement indicating that he had a predicate felony offense (see People v. Judd, 111 A.D.3d 1421, 1423, 975 N.Y.S.2d 312 [4th Dept. 2013], lv. denied 23 N.Y.3d 1039, 993 N.Y.S.2d 253, 17 N.E.3d 508 [2014];  see generally People v. Pellegrino, 60 N.Y.2d 636, 637, 467 N.Y.S.2d 355, 454 N.E.2d 938 [1983]).  In any event, we conclude that the record establishes that any error is harmless, and remitting the matter for the filing of a predicate felony statement “would be futile and pointless” (People v. Bouyea, 64 N.Y.2d 1140, 1142, 490 N.Y.S.2d 724, 480 N.E.2d 338 [1985];  see People v. Fuentes, 140 A.D.3d 1656, 1657, 32 N.Y.S.3d 779 [4th Dept. 2016], lv denied 28 N.Y.3d 1072, 47 N.Y.S.3d 231, 69 N.E.3d 1027 [2016];  Judd, 111 A.D.3d at 1423, 975 N.Y.S.2d 312).

Finally, contrary to defendant's contention, we conclude under the circumstances of this case that “any violation of defendant's right to counsel at sentencing had no adverse impact, and he is not entitled to the remedy of a remand for resentencing ․, which ‘would serve no useful purpose’ ” (People v. Coppin, 55 A.D.3d 374, 375, 866 N.Y.S.2d 103 [1st Dept. 2008], lv denied 11 N.Y.3d 896, 873 N.Y.S.2d 272, 901 N.E.2d 766 [2008];  see People v. Adams, 52 A.D.3d 243, 243–244, 859 N.Y.S.2d 170 [1st Dept. 2008], lv denied 11 N.Y.3d 829, 868 N.Y.S.2d 604, 897 N.E.2d 1088 [2008];  cf. People v. Allen, 99 A.D.3d 1252, 1253, 951 N.Y.S.2d 822 [4th Dept. 2012];  see generally People v. Johnson, 20 N.Y.3d 990, 991, 960 N.Y.S.2d 55, 983 N.E.2d 1239 [2013]).