PEOPLE v. LOVE (2020)

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 a plea of guilty of, inter alia, two counts of criminal possession of a forged instrument in the second degree (Penal Law § 170.25). Contrary to defendant's contention, his waiver of the right to appeal is valid inasmuch as County Court informed defendant, before he entered his plea, that the waiver would be a condition of the plea (cf. 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 the court assured itself “prior to the completion of the plea proceeding ․ that defendant adequately understood the right that [defendant] was forgoing” (People v. Bradshaw, 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011]).

Although defendant's contention that his plea “was coerced by statements made by the court ․ ‘survives even a valid waiver of the right to appeal’ ” (People v. Bellamy, 170 A.D.3d 1652, 1653, 94 N.Y.S.3d 909 [4th Dept. 2019];  see People v. Boyde, 122 A.D.3d 1302, 1302, 995 N.Y.S.2d 428 [4th Dept. 2014];  People v. Gast, 114 A.D.3d 1270, 1270, 980 N.Y.S.2d 221 [4th Dept. 2014], lv denied 22 N.Y.3d 1198, 986 N.Y.S.2d 419, 9 N.E.3d 914 [2014]), that contention is not preserved for our review “because [defendant] failed to move to withdraw his plea or vacate the judgment of conviction” (Bellamy, 170 A.D.3d at 1653, 94 N.Y.S.3d 909;  see Gast, 114 A.D.3d at 1270, 980 N.Y.S.2d 221).  We decline to exercise our power to address that contention as a matter of discretion in the interest of justice (see CPL 470.15[3][c]).

Defendant further contends that his decision to enter the plea near the end of the jury trial “was largely impacted by the court's refusal to allow him to get a new attorney” in the middle of his trial.  We thus conclude that defendant's contention that the court erred in refusing his request to grant a mistrial in order for him to retain a new attorney is not foreclosed by the valid waiver of the right to appeal or forfeited by his plea (see People v. Jones, 173 A.D.3d 1628, 1630, 102 N.Y.S.3d 365 [4th Dept. 2019];  People v. Booker, 133 A.D.3d 1326, 1327, 20 N.Y.S.3d 832 [4th Dept. 2015], lv denied 27 N.Y.3d 1149, 39 N.Y.S.3d 383, 62 N.E.3d 123 [2016];  cf. People v. Barr, 169 A.D.3d 1427, 1427, 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]).  Although defendant's contention was not properly preserved for our review (see People v. Hobart, 286 A.D.2d 916, 916, 731 N.Y.S.2d 127 [4th Dept. 2001], lv denied 97 N.Y.2d 683, 738 N.Y.S.2d 298, 764 N.E.2d 402 [2001]), we nevertheless exercise our power to address that contention as a matter of discretion in the interest of justice (see CPL 470.15[3][c]).  In our view, defendant's contention lacks merit.  We conclude that, “ ‘[a]t most, defendant's allegations evinced disagreements with counsel over strategy ․, which were not sufficient grounds for substitution’ ” (People v. Larkins, 128 A.D.3d 1436, 1440, 8 N.Y.S.3d 755 [4th Dept. 2015], lv denied 27 N.Y.3d 1001, 38 N.Y.S.3d 110, 59 N.E.3d 1222 [2016];  see People v. Chess, 162 A.D.3d 1577, 1579, 79 N.Y.S.3d 433 [4th Dept. 2018];  see generally People v. Linares, 2 N.Y.3d 507, 511–512, 780 N.Y.S.2d 529, 813 N.E.2d 609 [2004]).

Defendant further contends that he was penalized for asserting his right to a trial.  Although that contention is not precluded by the valid waiver of the right to appeal (see People v. Povoski, 55 A.D.3d 1221, 1222, 864 N.Y.S.2d 586 [4th Dept. 2008], lv denied 11 N.Y.3d 929, 874 N.Y.S.2d 14, 902 N.E.2d 448 [2009]), defendant failed to preserve that contention for our review (see People v. Hurley, 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 553 N.E.2d 1017 [1990];  People v. Green, 35 A.D.3d 1211, 1211, 825 N.Y.S.2d 891 [4th Dept. 2006], lv denied 8 N.Y.3d 985, 838 N.Y.S.2d 488, 869 N.E.2d 664 [2007]), and 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 final contention is that the bargained-for sentence is unduly harsh and severe.  We do not address that contention inasmuch as defendant, by “waiving the right to appeal in connection with a negotiated plea and sentence,” has “relinquish[ed] the right to invoke” this Court's interest of justice jurisdiction to modify that sentence (People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]).