PEOPLE v. RAMOS (2020)

MEMORANDUM AND ORDER

Defendant and 20 other individuals were charged in a 263–count indictment with various crimes based upon their participation in a conspiracy to distribute heroin, cocaine and other drugs throughout the state. In full satisfaction of both the 41 counts of the indictment pertaining to him and another potential sale charge, defendant pleaded guilty to one count of criminal sale of a controlled substance in the first degree with the understanding that he would be sentenced to a prison term of 15 years followed by five years of postrelease supervision. The plea agreement also required defendant to waive his right to appeal. Defendant pleaded guilty in conformity with the plea agreement, and the matter was adjourned for sentencing. Following the denial of defendant's pro se motion to withdraw his plea, Supreme Court sentenced defendant to the agreed-upon term of imprisonment, and this appeal ensued.

We affirm. Defendant first asserts – without elaboration – that his waiver of the right to appeal was invalid. “[T]he record demonstrates that [Supreme] Court adequately explained, and defendant acknowledged that he understood, that the waiver of the right to appeal was separate and distinct from the rights automatically forfeited by the guilty plea” (People v. Perry, 168 A.D.3d 1287, 1287, 91 N.Y.S.3d 811 [2019] [citations omitted] ), and defendant signed a written waiver of the right to appeal in open court, wherein he “acknowledged that he was waiving his right to argue that the sentence [imposed was] harsh or excessive” (People v. Rogers, 162 A.D.3d 1410, 1410, 75 N.Y.S.3d 923 [2018]). We therefore find that defendant's waiver of the right to appeal was knowing, intelligent and voluntary (see People v. Weir, 155 A.D.3d 1190, 1191, 63 N.Y.S.3d 256 [2017]). In light of the valid appeal waiver, defendant's challenge to the severity of his agreed-upon sentence is precluded (see People v. Major, 176 A.D.3d 1257, 1258, 107 N.Y.S.3d 725 [2019], lv denied 34 N.Y.3d 1017, 114 N.Y.S.3d 765, 138 N.E.3d 494 [2019]), as is any claim relating to the denial of his suppression motion (see People v. Inman, 177 A.D.3d 1167, 1168, 115 N.Y.S.3d 148 [2019]; People v. Swank, 176 A.D.3d 1627, 1628, 107 N.Y.S.3d 919 [2019], lv denied 34 N.Y.3d 1082, 116 N.Y.S.3d 165, 139 N.E.3d 823, 2019 WL 7560281 [Dec. 31, 2019]).

Defendant's challenge to the voluntariness of his plea survives his valid appeal waiver (see People v. Binion, 134 A.D.3d 1252, 1253, 19 N.Y.S.3d 914 [2015]), but defendant's pro se motion to withdraw his plea was not premised upon the ground now asserted – namely, that his guilty plea resulted from defense counsel's misrepresentation that the state prison term imposed would run concurrently with a federal sentence that defendant then was serving for a parole violation. Accordingly, this argument is unpreserved for our review (see People v. Diggs, 178 A.D.3d 1203, 1205, 116 N.Y.S.3d 707 [2019]; People v. Simon, 166 A.D.3d 1075, 1076, 86 N.Y.S.3d 333 [2018]; People v. Booker, 159 A.D.3d 1221, 1222, 70 N.Y.S.3d 408 [2018], lv denied 31 N.Y.3d 1145, 83 N.Y.S.3d 427, 108 N.E.3d 501 [2018]). The narrow exception to the preservation requirement was not triggered, as “defendant did not make any statements during the plea allocution that were inconsistent with his guilt or otherwise called into question the voluntariness of his plea” (People v. Mastro, 174 A.D.3d 1232, 1232, 105 N.Y.S.3d 715 [2019]; see People v. Harrington, 170 A.D.3d 1338, 1338, 93 N.Y.S.3d 919 [2019], lv denied 33 N.Y.3d 1031, 102 N.Y.S.3d 547, 126 N.E.3d 197 [2019]). “Further, absent record evidence of innocence, fraud or mistake in the inducement of the plea, we cannot say that [Supreme] Court abused its discretion in denying defendant's [pro se] motion to withdraw his plea without a hearing” (People v. Palmer, 174 A.D.3d 1118, 1119, 104 N.Y.S.3d 793 [2019] [internal quotation marks and citations omitted]; see People v. Woods, 158 A.D.3d 900, 900, 71 N.Y.S.3d 176 [2018], lv denied 31 N.Y.3d 1154, 83 N.Y.S.3d 436, 108 N.E.3d 510 [2018]). Defense counsel took no position with respect to defendant's pro se motion (see People v. Tyler, 130 A.D.3d 1383, 1385, 14 N.Y.S.3d 570 [2015]) and, therefore, the assignment of new counsel to represent defendant on the motion was not warranted (compare People v. Faulkner, 168 A.D.3d 1317, 1318–1319, 92 N.Y.S.3d 753 [2019]). Finally, even assuming that defendant's severance claim was properly before us, defendant's knowing, intelligent and voluntary guilty plea precludes any challenge to Supreme Court's ruling on this point (see People v. Hunter, 49 A.D.3d 1243, 1243, 852 N.Y.S.2d 880 [2008]; People v. Welcome, 184 A.D.2d 916, 916, 587 N.Y.S.2d 229 [1992], lv denied 80 N.Y.2d 935, 589 N.Y.S.2d 863, 603 N.E.2d 968 [1992]).

ORDERED that the judgment is affirmed.

Pritzker, J.

Clark, J.P., Devine, Aarons and Reynolds Fitzgerald, JJ., concur.