PEOPLE v. KOSMETATOS (2019)

MEMORANDUM AND ORDER

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

Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him, upon his plea of guilty, of murder in the first degree (Penal Law § 125.27[1][a][vii]; [b] ), attempted arson in the second degree (§§ 110.00, 150.15), and burglary in the second degree (§ 140.25[2] ). In appeal No. 2, defendant appeals from a judgment convicting him, upon his plea of guilty, of burglary in the first degree (§ 140.30[2] ). The two pleas were entered in a single plea proceeding. We affirm in each appeal.

In each appeal, we conclude that defendant “knowingly, intelligently, and voluntarily waived his right to appeal as a condition of the plea” (People v. Alsaifullah, 162 A.D.3d 1483, 1484, 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] [internal quotation marks omitted]; see generally People v. Sanders, 25 N.Y.3d 337, 340–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015]). Contrary to defendant's contention, Supreme Court “engage[d][him] in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice ․, and the record establishes that defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” (Alsaifullah, 162 A.D.3d at 1484, 77 N.Y.S.3d 811; see Sanders, 25 N.Y.3d at 341, 12 N.Y.S.3d 593, 34 N.E.3d 344). Contrary to defendant's further contention, “the court was not required to specify during the colloquy which specific claims survive the waiver of the right to appeal” (People v. Bizardi, 130 A.D.3d 1492, 1492, 12 N.Y.S.3d 480 [4th Dept. 2015], lv denied 27 N.Y.3d 992, 38 N.Y.S.3d 102, 59 N.E.3d 1214 [2016] [internal quotation marks omitted]; see Alsaifullah, 162 A.D.3d at 1484, 77 N.Y.S.3d 811; People v. Rodriguez, 93 A.D.3d 1334, 1335, 940 N.Y.S.2d 508 [4th Dept. 2012], lv denied 19 N.Y.3d 966, 950 N.Y.S.2d 118, 973 N.E.2d 216 [2012]).

Defendant's contention in each appeal that his plea was not knowing, intelligent, and voluntary because he did not “recite the underlying facts of the crime[s] but simply replied to [the court's] questions with monosyllabic responses is actually a challenge to the factual sufficiency of the plea allocution, which is encompassed by the valid waiver of the right to appeal” (People v. Tapia, 158 A.D.3d 1079, 1079, 70 N.Y.S.3d 309 [4th Dept. 2018], lv denied 31 N.Y.3d 1088, 79 N.Y.S.3d 110, 103 N.E.3d 1257 [2018] [internal quotation marks omitted]; see People v. Burtes, 151 A.D.3d 1806, 1807, 58 N.Y.S.3d 766 [4th Dept. 2017], lv denied 30 N.Y.3d 978, 67 N.Y.S.3d 580, 89 N.E.3d 1260 [2017]; People v. Simcoe, 74 A.D.3d 1858, 1859, 902 N.Y.S.2d 489 [4th Dept. 2010], lv denied 15 N.Y.3d 778, 907 N.Y.S.2d 467, 933 N.E.2d 1060 [2010]). Defendant's further contention that each plea was not knowingly, intelligently, and voluntarily entered because a favorable sentence for the codefendant was conditioned upon his plea of guilty is also unpreserved for our review inasmuch as he failed to move to withdraw either plea or to vacate either judgment of conviction on that ground (see People v. Fulton, 133 A.D.3d 1194, 1195, 19 N.Y.S.3d 152 [4th Dept. 2015], lv denied 26 N.Y.3d 1109, 26 N.Y.S.3d 767, 47 N.E.3d 97 [2016], reconsideration denied 27 N.Y.3d 997, 38 N.Y.S.3d 107, 59 N.E.3d 1219 [2016];cf. People v. Fiumefreddo, 82 N.Y.2d 536, 542, 605 N.Y.S.2d 671, 626 N.E.2d 646 [1993]), and this case does not fall within the rare exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988]). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[3][c]).

Defendant's contention that, based on a statement he made during the plea colloquy, the court should not have accepted his pleas without inquiring into his mental competency to plead guilty is also unpreserved (see People v. Reap, 163 A.D.3d 1287, 1289, 81 N.Y.S.3d 654 [3d Dept. 2018], lv. denied 32 N.Y.3d 1128, 93 N.Y.S.3d 266, 117 N.E.3d 825 [2018]; cf. People v. Young, 66 A.D.3d 1445, 1445–1446, 885 N.Y.S.2d 860 [4th Dept. 2009], lv denied 13 N.Y.3d 912, 895 N.Y.S.2d 326, 922 N.E.2d 915 [2009]). In any event, we conclude that nothing in the record of the plea proceeding calls into question defendant's mental capacity; indeed, his responses to the court's inquiries appeared to be informed, competent, and lucid (see Young, 66 A.D.3d at 1446, 885 N.Y.S.2d 860).

To the extent that defendant's contention that he received ineffective assistance of counsel is based on matters outside the record on appeal, his contention must be raised by way of a motion pursuant to CPL article 440 (see People v. McClary, 162 A.D.3d 1582, 1583, 78 N.Y.S.3d 579 [4th Dept. 2018]). To the extent that we are able to review the remaining instances of alleged ineffective assistance on the record before us, we conclude that defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981]).

Finally, defendant's waiver of the right to appeal does not encompass his challenge in appeal No. 1 to the severity of the sentence because “no mention was made on the record during the course of the allocution concerning the waiver of defendant's right to appeal his conviction that he was also waiving his right to appeal any issue concerning the harshness of his sentence” (People v. Herrington, 161 A.D.3d 1562, 1562, 72 N.Y.S.3d 919 [4th Dept. 2018] [internal quotation marks omitted] ). We nevertheless conclude that the sentence is not unduly harsh or severe.