PEOPLE v. FELIZ (2022)

Judgment, Supreme Court, Bronx County (Julio Rodriguez, III, J.), rendered November 7, 2016, convicting defendant, upon his plea of guilty, of criminal sexual act in the first degree, and sentencing him to a term of eight years, unanimously affirmed.

Defendant pleaded guilty to a felony, pursuant to a superior court information, in a court with appropriate jurisdiction over such matters.  The proceedings at issue took place in a hybrid court with jurisdiction over both Supreme Court and Criminal Court matters (see e.g. People v. Rodriguez, 151 A.D.3d 580, 54 N.Y.S.3d 285 [1st Dept. 2017], lv denied 29 N.Y.3d 1133, 64 N.Y.S.3d 683, 86 N.E.3d 575 [2017]).  By being assigned to a hybrid part, the Justice presiding therein was appointed a de facto Supreme Court Justice with regard to Supreme Court matters, such as defendant's, while remaining a Criminal Court Judge for Criminal Court matters, and there is thus no basis for invalidating defendant's conviction (see People v. Campos, 239 A.D.2d 185, 657 N.Y.S.2d 49 [1st Dept. 1997], lv denied 90 N.Y.2d 902, 663 N.Y.S.2d 514, 686 N.E.2d 226 [1997]).  Defendant lacks standing to object to any defects or delays in the internal administrative process for designating the Justice as an acting Supreme Court Justice (see Sylvia Lake Co. v. Northern Ore Co., 242 N.Y. 144, 147, 151 N.E. 158 [1926], cert denied 273 U.S. 695, 47 S.Ct. 92, 71 L.Ed. 844 [1926];  Curtin v. Barton, 139 N.Y. 505, 511, 34 N.E. 1093 [1893];  People ex rel. Devine v. Scully, 110 A.D.2d 733, 734, 487 N.Y.S.2d 615 [2d Dept. 1985]).

The record sufficiently establishes that defendant's waiver of indictment and prosecution by superior court information satisfied the requirement that a “criminal court has held the defendant for the action of a grand jury” (CPL 195.10).  Defendant, through counsel, waived his right to a felony complaint hearing (see e. g. People v. Glassner, 193 A.D.3d 1182, 1184, 147 N.Y.S.3d 191 [3d Dept. 2021], lv denied 37 N.Y.3d 956, 147 N.Y.S.3d 523, 170 N.E.3d 397 [2021]).  “[N]othing in the record calls into question the effectiveness of defendant's waiver as announced by counsel” (People v. Velasquez, 1 N.Y.3d 44, 49–50, 769 N.Y.S.2d 156, 801 N.E.2d 376 [2003]).  Moreover, defendant has not shown that waiving a case to the grand jury is one of the fundamental decisions to be made by a defendant, personally (see People v. Hogan, 26 N.Y.3d 779, 785–787, 28 N.Y.S.3d 1, 48 N.E.3d 58 [2016]).  We note that here, waiving the case to the grand jury was simply a step toward obtaining a favorable negotiated disposition.  The court then transferred the case from its Criminal Court capacity to its Supreme Court capacity, thereby ordering defendant held for grand jury action (see People v. Cicio, 157 A.D.3d 651, 67 N.Y.S.3d 468 [1st Dept. 2018], lv denied 31 N.Y.3d 982, 77 N.Y.S.3d 660, 102 N.E.3d 437 [2018]).

Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record.  Accordingly, because defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal.  In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards relating to guilty pleas (see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995];  Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 [1985]).  Counsel obtained a favorable disposition in a case where defendant's sex crime against a child was fully captured on videotape and defendant did not appear to have any defense to the charges.  It is also clear from the record that counsel discussed with defendant his appeal waiver and any potential defenses.

Defendant made a valid waiver of his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 561–562, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied 589 U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020]), which forecloses review of his excessive sentence claim.  In any event, we perceive no basis for reducing the sentence, including the 20–year term of postrelease supervision.