PEOPLE v. JOHNSON

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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. David D. JOHNSON, Defendant-Appellant.

Decided: March 27, 2009

PRESENT:  SMITH, J.P., FAHEY, PERADOTTO, CARNI, AND GORSKI, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas T. Texido Of Counsel), for Defendant-Appellant. David D. Johnson, Defendant-Appellant Pro Se. Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers Of Counsel), for Respondent.

 Defendant appeals from a judgment convicting him, upon his plea of guilty, of burglary in the first degree (Penal Law § 140.30[1] ).   Contrary to the contention of defendant, he knowingly, intelligently and voluntarily waived his right to appeal (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022).   That valid waiver of the right to appeal encompasses defendant's challenges to the severity of the sentence (see Lopez, 6 N.Y.3d at 255-256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46), Supreme Court's suppression ruling (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754;  People v. Garner, 52 A.D.3d 1265, 858 N.Y.S.2d 642, lv. denied 11 N.Y.3d 736, 864 N.Y.S.2d 395, 894 N.E.2d 659), and the factual sufficiency of the plea allocution (see People v. Spikes, 28 A.D.3d 1101, 1102, 813 N.Y.S.2d 602, lv. denied 7 N.Y.3d 818, 822 N.Y.S.2d 493, 855 N.E.2d 809;  People v. Bland, 27 A.D.3d 1052, 810 N.Y.S.2d 718, lv. denied 6 N.Y.3d 892, 817 N.Y.S.2d 627, 850 N.E.2d 674;  People v. White, 24 A.D.3d 1220, 805 N.Y.S.2d 917, lv. denied 6 N.Y.3d 820, 812 N.Y.S.2d 459, 845 N.E.2d 1290).

 Defendant further contends that his plea was not knowingly, voluntarily or intelligently entered because the court failed to apprise him of his right to have his guilt proven beyond a reasonable doubt.   Although that contention survives the waiver by defendant of his right to appeal, he failed to preserve it for our review by moving to withdraw the plea or to vacate the judgment of conviction on that ground (see People v. Davis, 45 A.D.3d 1357, 844 N.Y.S.2d 739, lv. denied 9 N.Y.3d 1005, 850 N.Y.S.2d 393, 880 N.E.2d 879).   In any event, defendant's contention is without merit.   It is well settled that there is no “uniform mandatory catechism of pleading defendants” (People v. Nixon, 21 N.Y.2d 338, 353, 287 N.Y.S.2d 659, 234 N.E.2d 687, cert. denied sub nom. Robinson v. New York, 393 U.S. 1067, 89 S.Ct. 721, 21 L.Ed.2d 709;  see People v. Harris, 61 N.Y.2d 9, 16-17, 471 N.Y.S.2d 61, 459 N.E.2d 170), and a plea is not invalid “solely because the [court] failed to specifically enumerate all the rights to which the defendant was entitled” (Harris, 61 N.Y.2d at 16, 471 N.Y.S.2d 61, 459 N.E.2d 170), including the right to have his or her guilt proven beyond a reasonable doubt at trial (see People v. Ramirez, 159 A.D.2d 392, 553 N.Y.S.2d 94, lv. denied 76 N.Y.2d 863, 560 N.Y.S.2d 1003, 561 N.E.2d 903).

 The further contention of defendant in his pro se supplemental brief that his plea was coerced is belied by his statement during the plea proceeding that he was not threatened, forced or coerced into pleading guilty (see People v. Worthy, 46 A.D.3d 1382, 847 N.Y.S.2d 806, lv. denied 10 N.Y.3d 773, 854 N.Y.S.2d 334, 883 N.E.2d 1269).

To the extent that the contention of defendant, in his main and pro se supplemental briefs, that he was denied effective assistance of counsel survives his guilty plea and his waiver of the right to appeal (see People v. Santos, 37 A.D.3d 1141, 827 N.Y.S.2d 917, lv. denied 8 N.Y.3d 950, 836 N.Y.S.2d 560, 868 N.E.2d 243), it is lacking in merit (see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265).

 Defendant further contends in his main brief that the court erred in denying his pro se motion for a hearing pursuant to CPL 420.40 based on his alleged inability to pay the mandatory surcharge.   That contention is encompassed by his waiver of the right to appeal (see People v. Camacho, 4 A.D.3d 862, 771 N.Y.S.2d 481, lv. denied 2 N.Y.3d 761, 778 N.Y.S.2d 779, 811 N.E.2d 41;  People v. Smith, 309 A.D.2d 1282, 1283, 764 N.Y.S.2d 732) and, in any event, lacks merit.   Defendant failed to offer “credible and verifiable information establishing that the surcharge would work an unreasonable hardship on defendant over and above the ordinary hardship suffered by other indigent inmates” (People v. Abdus-Samad, 274 A.D.2d 666, 667, 712 N.Y.S.2d 63, lv. denied 95 N.Y.2d 862, 715 N.Y.S.2d 217, 738 N.E.2d 365;  see People v. Cheatom, 57 A.D.3d 1447, 871 N.Y.S.2d 529;  Camacho, 4 A.D.3d 862, 771 N.Y.S.2d 481).

 Defendant failed to preserve for our review the contention in his pro se supplemental brief that the People committed a Brady violation by failing to produce marihuana that was allegedly found at the scene of the crime (see People v. Kearney, 39 A.D.3d 964, 966, 833 N.Y.S.2d 734, lv. denied 9 N.Y.3d 846, 840 N.Y.S.2d 772, 872 N.E.2d 885;  People v. Little, 23 A.D.3d 1117, 1118, 807 N.Y.S.2d 756, lv. denied 6 N.Y.3d 777, 811 N.Y.S.2d 344, 844 N.E.2d 799;  People v. Harris, 1 A.D.3d 881, 882, 767 N.Y.S.2d 725, lv. denied 2 N.Y.3d 740, 778 N.Y.S.2d 466, 810 N.E.2d 919).   In any event, that contention is without merit because defendant failed to establish the existence of the marihuana (see People v. Mellerson, 15 A.D.3d 964, 965, 788 N.Y.S.2d 746, lv. denied 5 N.Y.3d 791, 801 N.Y.S.2d 812, 835 N.E.2d 672), and its potential exculpatory value is purely speculative (see People v. Smith, 306 A.D.2d 861, 862, 762 N.Y.S.2d 721, lv. denied 100 N.Y.2d 599, 766 N.Y.S.2d 175, 798 N.E.2d 359).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: