THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. STEVEN FORSHEY DEFENDANT APPELLANT (2026)

MEMORANDUM AND ORDER

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

Memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [2]). Contrary to defendant's contentions in his main and pro se supplemental briefs, we conclude that defendant's waiver of the right to appeal is valid (see generally People v Lopez, 6 NY3d 248, 256 [2006]). County Court did not mischaracterize the scope of the waiver of the right to appeal (see People v Thomas, 34 NY3d 545, 559-564 [2019], cert denied 589 US 1302 [2020]) during the waiver colloquy, which followed the model colloquy almost verbatim (see NY Model Colloquies, Waiver of the Right to Appeal).

Defendant further contends in both his main and pro se supplemental briefs that his plea was invalid on the grounds that it was not factually sufficient and was not voluntary. Defendant contends that he admitted “only some of the necessary elements” of attempted burglary in the second degree and did not admit that he entered the victim's house with the intent to commit a crime therein. Defendant further contends that the plea was involuntary because the court did not explain the elements of the crime to him or the rights he was “waiving” by pleading guilty.

Defendant's contentions regarding the sufficiency of the factual colloquy are precluded by the valid waiver of the right to appeal (see People v Torres, 117 AD3d 1497, 1498 [4th Dept 2014], lv denied 24 NY3d 965 [2014]; People v Wilson, 38 AD3d 1348, 1348 [4th Dept 2007], lv denied 9 NY3d 927 [2007]). Defendant's contentions with respect to the voluntariness of the plea survive the valid waiver of the right to appeal (see e.g. People v Johnson, 229 AD3d 1300, 1301 [4th Dept 2024], lv denied 42 NY3d 1020 [2024]; People v Roots, 201 AD3d 1364, 1365 [4th Dept 2022]), but they are unpreserved for our review (see People v Morse, 233 AD3d 1470, 1470 [4th Dept 2024], lv denied 43 NY3d 1047 [2025]; People v Thompson, 219 AD3d 1666, 1667 [4th Dept 2023], lv denied 41 NY3d 944 [2024]). Moreover, the narrow exception to the preservation rule set forth in People v Lopez (71 NY2d 662, 666 [1988]) does not apply in this case.

We reject defendant's contentions in both his main and pro se supplemental briefs that the indictment should be dismissed because he was improperly forced to testify before the grand jury in prison attire, shackles, and handcuffs. Even assuming, arguendo, that defendant's contentions are not precluded by his valid waiver of the right to appeal (see People v Alsaifullah, 162 AD3d 1483, 1484-1485 [4th Dept 2018], lv denied 32 NY3d 1062 [2018]), we conclude that they are not preserved for our review inasmuch as defendant “neither objected nor requested curative instructions” (People v Jones, 111 AD3d 1148, 1148-1149 [3d Dept 2013], lv denied 23 NY3d 1063 [2014], reconsideration denied 24 NY3d 1044 [2014]; see People v Robinson, 49 AD3d 1269, 1270 [4th Dept 2008], lv denied 10 NY3d 869 [2008]; People v Abron, 37 AD3d 1163, 1163 [4th Dept 2007], lv denied 8 NY3d 980 [2007]). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]). Moreover, defendant's contention, in his pro se supplemental brief, that he was denied effective assistance of counsel based on defense counsel's failure to object to the prison attire, shackles, and handcuffs does not survive his guilty plea inasmuch as there is no evidence that “the plea bargaining process was infected by [the] allegedly ineffective assistance” or that defendant entered the plea “because of his attorney[’s] allegedly poor performance” (People v Johnson, 229 AD3d 1300, 1302 [4th Dept 2024], lv denied 42 NY3d 1020 [2024] [internal quotation marks omitted]; see People v Williams, 246 AD3d 1370, 1371 [4th Dept 2026], lv denied 45 NY3d 975 [2026]). To the extent that defendant in his pro se supplemental brief relies on matters outside the record on appeal to support his contention, that contention must be raised in a CPL article 440 motion (see People v Dunn, 229 AD3d 1220, 1223 [4th Dept 2024]; People v Seymore, 188 AD3d 1767, 1769-1770 [4th Dept 2020], lv denied 36 NY3d 1100 [2021]).

Defendant contends in his pro se supplemental brief that this appeal should be held in abeyance pending a determination on his CPL article 440 motion and that his motion should be heard before this appeal is decided. We decline to exercise our discretion to hold this appeal in abeyance and conclude that defendant's contentions related to his CPL article 440 motion rely on matters outside the record on appeal and should be addressed in that motion.

We have reviewed the remaining contentions in defendant's pro se supplemental brief and conclude that none warrants modification or reversal of the judgment.

All concur except Ogden, J., who dissents and votes to reverse in accordance with the following memorandum: I respectfully dissent. It is well established that a defendant may not be restrained by means of visible handcuffs or shackles during criminal proceedings “unless there is a reasonable basis, articulated on the record, for doing so” (People v Rouse, 79 NY2d 934, 935 [1992]; see People v Best, 19 NY3d 739, 743 [2012]; People v Clyde, 18 NY3d 145, 153 [2011], cert denied 566 US 944 [2012]). Courts must closely scrutinize whether the use of visible physical restraints is “ ‘justified by an essential state interest ․ specific to the defendant’ ” (People v Cain, 209 AD3d 124, 125-126 [3d Dept 2022], lv denied 39 NY3d 1071 [2023], quoting Deck v Missouri, 544 US 622, 624 [2005]). “An actual justification for the use of physical restraints, specific to the defendant, is no less necessary when a defendant testifies before a grand jury” (id. at 126; see People v Brooks, 140 AD3d 1780, 1781 [4th Dept 2016], lv denied 32 NY3d 1124 [2018]; People v Felder, 201 AD2d 884, 885 [4th Dept 1994], lv denied 83 NY2d 871 [1994]). In the context of a grand jury proceeding, the People are also “required to articulate a reasonable basis on the record for their use” (Cain, 209 AD3d at 126; see People v Richardson, 143 AD3d 1252, 1253 [4th Dept 2016], lv denied 28 NY3d 1150 [2017]).

Here, there is no dispute that defendant appeared before the grand jury in shackles and handcuffs. It is also undisputed that the prosecutor did not articulate on the record a basis, reasonable or otherwise, for the use of restraints and failed to provide the grand jurors with any cautionary instructions to dispel the prejudice arising from defendant appearing in restraints (cf. Brooks, 140 AD3d at 1781).

This court has exercised its power to review this very contention—that a defendant should not be required to appear before the grand jury in visible restraints without a statement by the prosecutor on the record supporting a reasonable basis for the use of restraints—as a matter of discretion in the interest of justice (see e.g. Richardson, 143 AD3d at 1253), and I can perceive no compelling reason for the majority's refusal to exercise that power on this appeal. This is particularly true here because the error cannot be deemed harmless. It cannot be said that the evidence before the grand jury was so overwhelming that it “eliminated the possibility that defendant was prejudiced as a result of the improper shackling” (Brooks, 140 AD3d at 1781). The grand jury dismissed one charge presented by the People, evidently not crediting the victim's testimony that defendant stole his debit card.

I would therefore reverse the judgment and dismiss the indictment without prejudice to the People to re-present any appropriate charges to another grand jury (see Cain, 209 AD3d at 127; see generally People v Huston, 88 NY2d 400, 411 [1996]).

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court