PEOPLE v. BEST (2020)

DECISION & ORDER

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the record does not reflect that he waived the right to appeal as a result of any duress.  Further, the defendant has not drawn our attention to any other circumstance which might otherwise warrant our declining to enforce the appeal waiver.  Therefore, the defendant's waiver of his right to appeal precludes appellate review of his contention that the Supreme Court improvidently exercised its discretion in denying his preplea recusal application (see People v. Taylor, 165 A.D.3d 1181, 84 N.Y.S.3d 367).

The defendant's contention regarding the voluntariness of his plea survives his waiver of the right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022;  People v. Haywood, 122 A.D.3d 769, 769, 996 N.Y.S.2d 137).  However, the record establishes that the defendant knowingly, voluntarily, and intelligently entered a plea of guilty (see People v. Sougou, 26 N.Y.3d 1052, 1054–1055, 23 N.Y.S.3d 121, 44 N.E.3d 196;  People v. Rodriguez, 142 A.D.3d 1189, 1189–1190, 38 N.Y.S.3d 224), and that his conviction was not the product of duress.

The defendant's contention that his constitutional right to represent himself at his arraignment on the felony complaint was violated survives both the entry of his plea of guilty and the waiver of his right to appeal (see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Hansen, 95 N.Y.2d 227, 230, 715 N.Y.S.2d 369, 738 N.E.2d 773;  People v. Seaberg, 74 N.Y.2d at 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022).  However, review of this constitutional issue is precluded by the lack of an adequate record, which was the defendant's burden to provide (see People v. Olivo, 52 N.Y.2d 309, 320, 438 N.Y.S.2d 242, 420 N.E.2d 40).

The defendant's contention that, after he was permitted to proceed pro se, his absence when his assigned investigator made an application to be relieved violated his constitutional rights to counsel, to be present at all material stages of the criminal proceedings, and to due process also survives both the entry of his plea of guilty and the waiver of his right to appeal (see People v. Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Hansen, 95 N.Y.2d at 230, 715 N.Y.S.2d 369, 738 N.E.2d 773;  People v. Seaberg, 74 N.Y.2d at 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022).  In every criminal proceeding, a defendant has an absolute right to be present, with counsel, “whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge” (Snyder v. Massachusetts, 291 U.S. 97, 105–106, 54 S.Ct. 330, 78 L.Ed. 674;  see People ex rel. Bartlam v. Murphy, 9 N.Y.2d 550, 553, 215 N.Y.S.2d 753, 175 N.E.2d 336;  N.Y. Const., art. I, § 6).  The application by the assigned investigator to be relieved was not a material stage of the criminal proceedings (see People v. Harris, 76 N.Y.2d 810, 812, 559 N.Y.S.2d 966, 559 N.E.2d 660;  see also People v. Roman, 88 N.Y.2d 18, 26, 643 N.Y.S.2d 10, 665 N.E.2d 1050;  People v. Morales, 80 N.Y.2d 450, 455, 457, 591 N.Y.S.2d 825, 606 N.E.2d 953), and, in any event, the proceeding was adjourned, and no other proceedings took place on that date.  Accordingly, the defendant's absence from the courtroom on that date did not violate his rights to counsel, to be present at all material stages of the criminal proceedings, or to due process.

Although the defendant's contention that the felony complaint was jurisdictionally defective survives both the entry of his plea of guilty and the waiver of his right to appeal (see People v. Dreyden, 15 N.Y.3d 100, 103, 905 N.Y.S.2d 542, 931 N.E.2d 526;  People v. Hansen, 95 N.Y.2d at 230, 715 N.Y.S.2d 369, 738 N.E.2d 773), it is without merit.  The felony complaint was properly verified through the use of a form notice complying with the provisions of CPL 100.30(1)(d), and the form notice method of verification assures a measure of reliability sufficient to satisfy the demands of due process and double jeopardy (see People v. Kalin, 12 N.Y.3d 225, 231–232, 878 N.Y.S.2d 653, 906 N.E.2d 381;  see also People v. Dreyden, 15 N.Y.3d at 103, 905 N.Y.S.2d 542, 931 N.E.2d 526;  People v. Casey, 95 N.Y.2d 354, 366, 717 N.Y.S.2d 88, 740 N.E.2d 233).

Contrary to the defendant's further contention, the indictment was not jurisdictionally defective.  The indictment effectively charged the defendant with the commission of a particular crime and afforded him fair notice of the charges made against him, so that he could prepare a defense and avoid subsequent attempts to retry him for the same crime (see People v. Ray, 71 N.Y.2d 849, 850, 527 N.Y.S.2d 740, 522 N.E.2d 1037).

By pleading guilty, the defendant forfeited his contention that he should have been granted a preliminary hearing on the felony complaint (see People v. Taylor, 65 N.Y.2d 1, 5, 489 N.Y.S.2d 152, 478 N.E.2d 755;  People v. Strong, 17 A.D.3d 1121, 1122, 794 N.Y.S.2d 258;  People v. Wiggins, 198 A.D.2d 535, 535, 605 N.Y.S.2d 936).

MASTRO, J.P., CHAMBERS, MALTESE and CHRISTOPHER, JJ., concur.