PEOPLE v. BLOUNT (2022)

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 criminal possession of stolen property in the fourth degree (Penal Law § 165.45 [2]). Preliminarily, we note that defendant did not waive his right to appeal in this case. Although there was some discussion about an appeal waiver during the plea colloquy, defendant “was never ․ called upon to actually waive that right” (People v. Magee, 200 A.D.3d 1619, 1619, 159 N.Y.S.3d 793 [4th Dept. 2021]).

We reject defendant's contention that County Court improperly failed to inquire into his complaints about defense counsel at sentencing. Defendant's unexplained allegations of “rude[ness]” and “belligeren[ce]” by defense counsel are precisely the sort of “vague and conclusory” claims that “do[ ] not ‘trigger the court's duty to make a minimal inquiry’ ” (People v. Dolison, 200 A.D.3d 1632, 1633, 155 N.Y.S.3d 908 [4th Dept. 2021]; see People v. El Hor, 197 A.D.3d 1118, 1120, 150 N.Y.S.3d 619 [2d Dept. 2021], lv denied 37 N.Y.3d 1096, 156 N.Y.S.3d 803, 178 N.E.3d 450 [2021]; see generally People v. Franklin, 137 A.D.3d 550, 551, 27 N.Y.S.3d 32 [1st Dept. 2016], lv denied 27 N.Y.3d 1132, 39 N.Y.S.3d 114, 61 N.E.3d 513 [2016]). Moreover, given that defendant “never asked to represent himself ․, the issue of self-representation never arose and defendant's present claim that the court should have advised him of his right to proceed pro se is baseless” (People v. Pines, 298 A.D.2d 179, 180, 748 N.Y.S.2d 716 [1st Dept. 2002], lv denied 99 N.Y.2d 562, 754 N.Y.S.2d 215, 784 N.E.2d 88 [2002]; see also People v. Crooks, 95 A.D.3d 417, 417, 943 N.Y.S.2d 90 [1st Dept. 2012], lv denied 19 N.Y.3d 995, 951 N.Y.S.2d 471, 975 N.E.2d 917 [2012]).

By moving to withdraw his plea solely on other grounds, defendant failed to preserve his current contention that his guilty plea was involuntary on the ground that he misunderstood the terms of the plea bargain (see People v. Sarrazini, 95 A.D.3d 459, 459, 942 N.Y.S.2d 869 [1st Dept. 2012], lv denied 19 N.Y.3d 967, 950 N.Y.S.2d 119, 973 N.E.2d 217 [2012]; see generally People v. Cato, 199 A.D.3d 1388, 1389, 154 N.Y.S.3d 548 [4th Dept. 2021]). In any event, defendant's claimed misunderstanding of the plea bargain is “belied by the record of the plea proceedings, which establishes that [he] was fully aware of the conditions of the plea bargain” (People v. Burke, 197 A.D.2d 731, 731, 602 N.Y.S.2d 243 [3d Dept. 1993]; see Sarrazini, 95 A.D.3d at 459-460, 942 N.Y.S.2d 869; People v. Ramos, 56 A.D.3d 1180, 1181, 866 N.Y.S.2d 893 [4th Dept. 2008], lv denied 12 N.Y.3d 761, 876 N.Y.S.2d 713, 904 N.E.2d 850 [2009]). Defendant “may not now claim that he misunderstood the terms of the plea bargain, which were clearly stated on the record and which are subject to but one interpretation” (People v. Ramirez, 137 A.D.2d 770, 770, 524 N.Y.S.2d 840 [2d Dept. 1988], lv denied 71 N.Y.2d 1031, 530 N.Y.S.2d 567, 526 N.E.2d 59 [1988]; see People v. Howell, 60 A.D.3d 1347, 1347, 875 N.Y.S.2d 371 [4th Dept. 2009]).

Finally, defendant contends that defense counsel was ineffective for making a comment that, in defendant's view, was adverse to defendant's motion to withdraw his plea. We reject that contention because defense counsel's purportedly adverse comment was made after the court had already denied defendant's motion to withdraw his plea (see People v. Clendinen, 4 A.D.3d 116, 117, 770 N.Y.S.2d 862 [1st Dept. 2004], lv denied 2 N.Y.3d 797, 781 N.Y.S.2d 296, 814 N.E.2d 468 [2004]; see also People v. Walker, 176 A.D.3d 747, 747-748, 107 N.Y.S.3d 717 [2d Dept. 2019]; People v. Martinez, 166 A.D.3d 1558, 1559-1560, 88 N.Y.S.3d 732 [4th Dept. 2018]).