PEOPLE v. SHANKS (2019)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Otsego County (Burns, J.), rendered April 21, 2017, upon a verdict convicting defendant of the crime of grand larceny in the third degree.

As a result of allegations that he misrepresented his income in order to obtain lost wage benefits on an insurance claim, defendant was charged in an indictment with grand larceny in the third degree.  Defendant had a string of assigned attorneys and, after County Court relieved the last and refused to appoint another because of the role defendant's behavior had repeatedly played in the breakdown of the attorney-client relationship, he represented himself at trial with an assigned legal advisor.  At the conclusion of that trial, a jury found defendant guilty as charged.  He thereafter retained counsel, who filed several postverdict motions.  An agreement was ultimately reached in which defendant withdrew his motions and waived his right to appeal in return for a sentence of time served and the resolution of unrelated criminal charges against him.  County Court imposed the agreed-upon sentence, and defendant appeals.

We affirm.  To begin, “a defendant may waive his or her right to appeal from a jury verdict” (People v. Leflore, 154 A.D.3d 1164, 1164, 64 N.Y.S.3d 148 [2017], lv denied 30 N.Y.3d 1106, 77 N.Y.S.3d 5, 101 N.E.3d 391 [2018];  see People v. Holman, 89 N.Y.2d 876, 878, 653 N.Y.S.2d 93, 675 N.E.2d 847 [1996];  People v. Seaberg, 74 N.Y.2d 1, 6–7, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989];  People v. Cipriani, 61 A.D.3d 1214, 1215, 876 N.Y.S.2d 775 [2009], lv denied 13 N.Y.3d 795, 887 N.Y.S.2d 544, 916 N.E.2d 439 [2009]).  The People set forth the terms of the postverdict agreement on the record, including that defendant would waive his right to appeal for a sentencing commitment of time served.  County Court then engaged in a thorough colloquy with defendant, during which defendant acknowledged that he had discussed the agreement with counsel to his satisfaction and understood it.  County Court explained the right to appeal from the conviction and eventual sentence, distinguished it from the trial rights that defendant had exercised and made clear that defendant was being asked to give it up as part of the agreement.  Defendant confirmed that he understood all of this and orally waived his right to appeal.  He further executed a written waiver that was handed up prior to sentencing, a document that included assurances that it had been signed by defendant in open court after consulting with defense counsel.  We are satisfied from the foregoing that, notwithstanding isolated uses of language more appropriate for a waiver executed as part of a plea agreement, defendant knowingly, voluntarily and intelligently waived his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 340–341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015];  People v. Wolz, 112 A.D.3d 1150, 1151–1152, 976 N.Y.S.2d 723 [2013], lv denied 23 N.Y.3d 1026, 992 N.Y.S.2d 809, 16 N.E.3d 1289 [2014];  People v. Cipriani, 61 A.D.3d at 1216, 876 N.Y.S.2d 775;  cf. People v. Leflore, 154 A.D.3d at 1164–1165, 64 N.Y.S.3d ).

Defendant argues that he was improperly found to have forfeited his right to counsel at trial but, even assuming that this argument survives his valid appeal waiver (compare People v. Trapani, 162 A.D.3d 1121, 1122, 78 N.Y.S.3d 745 [2018], with People v. Morales, 68 A.D.3d 1356, 1357, 890 N.Y.S.2d 733 [2009], lv denied 14 N.Y.3d 803, 899 N.Y.S.2d 138, 925 N.E.2d 942 [2010] and People v. Cipriani, 61 A.D.3d at 1216, 876 N.Y.S.2d 775), we cannot agree with it due to “his persistent pattern of threatening, abusive, obstreperous, and uncooperative behavior with successive assigned counsel” (People v. Sloane, 262 A.D.2d 431, 432, 693 N.Y.S.2d 52 [1999], lvs denied 93 N.Y.2d 1027, 697 N.Y.S.2d 586, 719 N.E.2d 947 [1999];  see People v. Cooper, 128 A.D.3d 1431, 1433, 9 N.Y.S.3d 490 [2015], lv denied 26 N.Y.3d 966, 18 N.Y.S.3d 602, 40 N.E.3d 580 [2015]).  His remaining contentions are precluded by his appeal waiver (see People v. Danielson, 170 A.D.3d 1430, 1431–1432, 96 N.Y.S.3d 754 [2019], lv denied 33 N.Y.3d 1030, 102 N.Y.S.3d 515, 126 N.E.3d 165 [2019];  People v. Morales, 68 A.D.3d at 1357, 890 N.Y.S.2d 733;  People v. Mills, 45 A.D.3d 892, 894–895, 844 N.Y.S.2d 492 [2007], lv denied 9 N.Y.3d 1036, 852 N.Y.S.2d 22, 881 N.E.2d 1209 [2008];  People v. Dickerson, 309 A.D.2d 966, 967, 766 N.Y.S.2d 138 [2003], lv denied 1 N.Y.3d 596, 776 N.Y.S.2d 228, 808 N.E.2d 364 [2004]).

ORDERED that the judgment is affirmed.

Devine, J.

Garry, P.J., Lynch, Clark and Aarons, JJ., concur.