PEOPLE v. MORELLI (2007)

Appeal from a judgment of the County Court of Chenango County (Daley, J.), rendered June 1, 2006, convicting defendant upon his plea of guilty of the crimes of criminal contempt in the first degree, burglary in the first degree (two counts), assault in the second degree and criminal mischief in the third degree.

In September 2005, while an order of protection existed in favor of defendant's girlfriend, defendant choked her and caused her injury.   Defendant waived indictment and agreed to be prosecuted by a superior court information (hereinafter SCI) charging him with, among other things, criminal contempt in the first degree.   Despite the issuance of a new stay-away order of protection, in October 2005 defendant forcibly entered his girlfriend's home with a crowbar, injured her and resisted arrest.   This incident led to an indictment charging defendant with, among other things, burglary in the first degree (two counts), assault in the second degree and criminal mischief in the third degree.   The People successfully moved to have the SCI and indictment consolidated.   Defendant entered an Alford plea to the SCI's charge of criminal contempt in the first degree and the felony charges in the indictment, in response to an offer of a determinate prison sentence between 5 and 10 years plus postrelease supervision, with a waiver of the right to appeal.   County Court imposed an aggregate prison sentence of 9 1/212 years with five years of postrelease supervision.   Defendant appeals.

 By not moving to withdraw his plea or vacate the judgment of conviction, defendant did not preserve his arguments that his waiver of appeal was either involuntary, unknowing, or coerced (see People v. Wright, 34 A.D.3d 940, 940, 822 N.Y.S.2d 923 [2006], lv. denied 8 N.Y.3d 886, 832 N.Y.S.2d 498, 864 N.E.2d 628 [2007];  People v. Kirkland, 2 A.D.3d 1063, 1063, 768 N.Y.S.2d 673 [2003];  People v. Coppaway, 281 A.D.2d 754, 722 N.Y.S.2d 813 [2001] ), or that his Alford plea was not supported by sufficient record proof (see People v. Lopez, 33 A.D.3d 1062, 822 N.Y.S.2d 658 [2006], lv. denied 8 N.Y.3d 847, 830 N.Y.S.2d 706, 862 N.E.2d 798 [2007];  People v. Spulka, 285 A.D.2d 840, 840, 727 N.Y.S.2d 789 [2001], lv. denied 97 N.Y.2d 643, 735 N.Y.S.2d 500, 761 N.E.2d 5 [2001] ).   In any event, County Court discussed with defendant the strong evidence against him, the likelihood of conviction based on that evidence and the benefits of the plea offers, such that defendant's Alford plea was supported by the record (see People v. Spulka, 285 A.D.2d at 841, 727 N.Y.S.2d 789).   Advising defendant of the potential maximum sentence, along with an evaluation of the evidence based upon the court file and defendant's acknowledgment of certain facts, did not constitute coercion to induce defendant's guilty plea (see People v. Lambe, 282 A.D.2d 776, 777, 722 N.Y.S.2d 437 [2001];  Britt v. State of New York, 260 A.D.2d 6, 12-13, 699 N.Y.S.2d 323 [1999], lv. denied 95 N.Y.2d 753, 711 N.Y.S.2d 155, 733 N.E.2d 227 [2000] ).   The court painstakingly explained to defendant that, in addition to proceeding to trial, two offers were available:  one resulting in a 10-year sentence and preserving his right to appeal, and the other with a sentence somewhere between 5 and 10 years, but requiring a waiver of appeal.   Defendant knowingly and voluntarily chose the option that permitted him to receive a lesser sentence in exchange for his waiver of the right to appeal, acknowledging his waiver orally on the record and in writing.

 Defendant's valid appeal waiver precludes any arguments that do not address County Court's jurisdiction or defendant's constitutional rights.   These non-jurisdictional, non-constitutional arguments include his claims that the court improperly consolidated the SCI and the indictment (see People v. Loyd, 28 A.D.3d 872, 812 N.Y.S.2d 195 [2006], lv. denied 7 N.Y.3d 758, 819 N.Y.S.2d 884, 853 N.E.2d 255 [2006] ), the District Attorney's office should have been disqualified (see People v. Allen, 236 A.D.2d 653, 653-654, 654 N.Y.S.2d 194 [1997];  People v. Clute, 226 A.D.2d 824, 640 N.Y.S.2d 826 [1996], lv. denied 88 N.Y.2d 1020, 651 N.Y.S.2d 19, 673 N.E.2d 1246 [1996] ), the court should have granted defendant's recusal motion (see People v. Castricone, 19 A.D.3d 1101, 796 N.Y.S.2d 272 [2005];  People v. McCafferty, 1 A.D.3d 799, 799, 767 N.Y.S.2d 292 [2003], lv. denied 2 N.Y.3d 743, 778 N.Y.S.2d 468, 810 N.E.2d 921 [2004];  People v. Anderson, 304 A.D.2d 975, 976, 756 N.Y.S.2d 916 [2003], lv. denied 100 N.Y.2d 578, 764 N.Y.S.2d 388, 796 N.E.2d 480 [2003] ), and the sentence imposed was harsh and excessive (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Nason, 31 A.D.3d 818, 819, 819 N.Y.S.2d 790 [2006], lv. denied 7 N.Y.3d 869, 824 N.Y.S.2d 614, 857 N.E.2d 1145 [2006] ).   Similarly, defendant's appeal waiver precludes his allegation of ineffective assistance of counsel, except to the extent that it relates to the voluntariness of his plea;  to the limited extent that it survives the waiver, defendant failed to preserve this claim by moving to withdraw the plea or vacate the judgment of conviction (see People v. Morgan, 39 A.D.3d 889, 890, 833 N.Y.S.2d 691 [2007], lv. denied 9 N.Y.3d 848, 840 N.Y.S.2d 775, 872 N.E.2d 888 [2007];  People v. Bier, 307 A.D.2d 649, 650, 762 N.Y.S.2d 840 [2003], lv. denied 100 N.Y.2d 618, 767 N.Y.S.2d 401, 799 N.E.2d 624 [2003] ). In any event, defendant failed to demonstrate good cause for a substitution of counsel and his assigned attorney skillfully represented defendant's interests (see People v. Linares, 2 N.Y.3d 507, 510-512, 780 N.Y.S.2d 529, 813 N.E.2d 609 [2004] ).

ORDERED that the judgment is affirmed.

KANE, J.

MERCURE, J.P., MUGGLIN, ROSE and LAHTINEN, JJ., concur.