People v. Barzee

• Decision Date: 22 April 2022
• Docket Number: 240,KA 20-01020
• Citation: 204 A.D.3d 1422,166 N.Y.S.3d 814
• Parties: The PEOPLE of the State of New York, Respondent, v. Saio BARZEE, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

204 A.D.3d 1422
166 N.Y.S.3d 814

The PEOPLE of the State of New York, Respondent,
v.
Saio BARZEE, Defendant-Appellant.

240
KA 20-01020

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

Entered: April 22, 2022

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT-APPELLANT.

SAIO BARZEE, DEFENDANT-APPELLANT PRO SE.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., CENTRA, PERADOTTO, LINDLEY, AND WINSLOW, JJ.

166 N.Y.S.3d 815

MEMORANDUM AND ORDER

204 A.D.3d 1422

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

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of robbery in the first degree ( Penal Law § 160.15 [3] ). We affirm.

Initially, as defendant contends in his main brief and as the People correctly concede, defendant's waiver of the right to appeal is invalid. Here, "there is no basis [in the record] upon which to conclude that [County Court] ensured ‘that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty’ " ( People v. Jones , 107 A.D.3d 1589, 1590, 966 N.Y.S.2d 724 [4th Dept. 2013], lv denied 21 N.Y.3d 1075, 974 N.Y.S.2d 324, 997 N.E.2d 149 [2013], quoting People v. Lopez , 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). In addition, the court mischaracterized the waiver as an "absolute bar" to the taking of an appeal ( People v. Thomas , 34 N.Y.3d 545, 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ; see People v. Osborn , 198 A.D.3d 1363, 1363, 152 N.Y.S.3d 660 [4th Dept. 2021], lv denied 37 N.Y.3d 1163, 160 N.Y.S.3d 724, 181 N.E.3d 1152 [2022] ).

Defendant contends in his main and pro se supplemental briefs that his plea was not knowingly, voluntarily, and intelligently entered because the court threatened to impose a greater sentence in the event of a conviction following trial. Although that contention would survive even a valid waiver of the right to appeal (see People v. Juarbe , 162 A.D.3d 1625, 1625, 75 N.Y.S.3d 441 [4th Dept. 2018] ), defendant failed to move to withdraw his plea or to vacate the judgment of conviction on that ground and thus failed to preserve his contention for our review (see id. at 1625-1626, 75 N.Y.S.3d 441 ; People v. Kelly , 145 A.D.3d 1431, 1431, 42 N.Y.S.3d 913 [4th Dept. 2016], lv denied 29 N.Y.3d 949, 54 N.Y.S.3d 380, 76 N.E.3d 1083 [2017] ; see generally People v. Grimes , 53 A.D.3d 1055, 1056, 860 N.Y.S.2d 723 [4th Dept. 2008], lv denied 11 N.Y.3d 789, 866 N.Y.S.2d 615, 896 N.E.2d 101 [2008] ). We decline to exercise our power to review

204 A.D.3d 1423

that contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ; Kelly , 145 A.D.3d at 1431, 42 N.Y.S.3d 913 ).

Defendant's additional challenges in his pro se supplemental brief to the voluntariness of his plea are likewise not preserved for our review (see People v. White , 156 A.D.3d 1489, 1490, 65 N.Y.S.3d 823 [4th Dept. 2017], lv denied 31 N.Y.3d 988, 77 N.Y.S.3d 665, 102 N.E.3d 442 [2018] ). Defendant also failed to preserve for our review the contention in his pro se supplemental brief that the court was biased against him and should have recused itself (see CPL 470.05 [2] ; People v. Prado , 4 N.Y.3d 725, 726, 790 N.Y.S.2d 418, 823 N.E.2d 824 [2004], rearg denied 4 N.Y.3d 795, 795 N.Y.S.2d 170, 828 N.E.2d 86 [2005] ; People v. Wyzykowski , 120 A.D.3d 1603, 1603, 992 N.Y.S.2d 665 [4th Dept. 2014], lv denied 24 N.Y.3d 1090, 1 N.Y.S.3d 17, 25 N.E.3d 354 [2014] ; People v. Jones , 79 A.D.3d 1773, 1773-1774, 917 N.Y.S.2d 445 [4th Dept. 2010], lv denied 16 N.Y.3d 832, 921 N.Y.S.2d 196, 946 N.E.2d 184 [2011]). We decline to exercise our power to review those contentions as a

166 N.Y.S.3d 816

matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ).

Defendant further contends in his pro se supplemental brief that he was denied effective assistance of counsel, which rendered his plea involuntary, because his...