PEOPLE v. MICHEL (2023)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (Craig Stephen Brown, J.), rendered September 9, 2021, convicting him of conspiracy in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's purported waiver of his right to appeal was invalid.  The County Court mischaracterized the nature of the right to appeal by stating that the defendant's conviction and sentence would be final (see People v. Marinelli, 205 A.D.3d 734, 165 N.Y.S.3d 717;  People v. Baker, 204 A.D.3d 824, 164 N.Y.S.3d 470), and the written waiver form did not clarify that appellate review remained available for select issues (see People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970).

The defendant's contention that the County Court improperly imposed an enhanced sentence is unpreserved for appellate review (see CPL 470.05[2]).  In any event, the defendant's contention is without merit.  The defendant did not receive an enhanced sentence, as he did not receive a sentence above the court's promised sentence cap (see People v. Johnson, 217 A.D.3d 883, 883, 189 N.Y.S.3d 745;  People v. Kiefer, 195 A.D.3d 1315, 1316–1317, 149 N.Y.S.3d 701;  People v. Harrington, 185 A.D.3d 1301, 1302, 125 N.Y.S.3d 901).

Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674;  People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584).

The defendant contends that the County Court erred in declining to entertain his pro se motion to proceed as pro se cocounsel. However, the defendant withdrew all motions, both pending and decided, as a condition of his plea of guilty. By withdrawing those motions, the defendant waived his right to seek appellate review of this issue (see People v. Cabot, 210 A.D.3d 902, 178 N.Y.S.3d 206; People v. Dunkins, 231 A.D.2d 587, 588, 647 N.Y.S.2d 107).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contention is unpreserved for appellate review and, in any event, without merit.

BRATHWAITE NELSON, J.P., DOWLING, WARHIT and LOVE, JJ., concur.