People v. Garrow

• Decision Date: 30 March 2017
• Citation: 148 A.D.3d 1459,51 N.Y.S.3d 208
• Parties: The PEOPLE of the State of New York, Respondent, v. Benjamin GARROW, Appellant.
• Court: New York Supreme Court — Appellate Division

148 A.D.3d 1459
51 N.Y.S.3d 208

The PEOPLE of the State of New York, Respondent,
v.
Benjamin GARROW, Appellant.

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

March 30, 2017.

51 N.Y.S.3d 209

Lisa A. Burgess, Indian Lake, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), for respondent.

Before: McCARTHY, J.P., EGAN JR., LYNCH, DEVINE and CLARK, JJ.

DEVINE, J.

Appeals (1) from a judgment of the Supreme Court (Lawliss, J.), rendered November 26, 2012 in Clinton County, convicting defendant upon his plea of guilty of the crime of predatory sexual assault against a child, and (2) by permission, from an order of said court, entered April 5, 2016 in Clinton County, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Defendant pleaded guilty to predatory sexual assault against a child pursuant to a negotiated plea agreement that included a waiver of appeal. In accordance with that agreement, defendant was sentenced to a prison term of 20 years to life. Defendant subsequently moved pursuant to CPL article 440 to vacate the judgment of conviction, claiming, among other things, that Supreme Court erred in failing to sua sponte recuse itself from this matter because it presided over a prior neglect proceeding in which defendant's improper conduct with the victim played a major role. Supreme Court denied the motion to vacate without a hearing. Defendant now appeals from the judgment of conviction and, with permission, from the order denying his motion to vacate.

Defendant's contention on direct appeal that Supreme Court should have recused itself is unpreserved for our review given defendant's failure to move for that relief or otherwise raise the issue before Supreme Court (see People v. White, 81 A.D.3d 1039, 1039, 916 N.Y.S.2d 652 [2011] ; People v. Mabry, 27 A.D.3d 835, 836, 810 N.Y.S.2d 577 [2006] ). Moreover, having validly waived his right to appeal, he is foreclosed from advancing the argument on direct appeal (see People v. White, 81 A.D.3d at 1039, 916 N.Y.S.2d 652 ; People v. McCafferty, 1 A.D.3d 799, 799, 767 N.Y.S.2d 292 [2003], lv. denied 2 N.Y.3d 743, 778 N.Y.S.2d 468, 810 N.E.2d 921 [2004] ). To that end, the record reflects that the court adequately explained the right to appeal and the consequences of an appeal waiver and ascertained that defendant understood them, after which defendant signed a written appeal waiver in open court (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Defendant's related claim on direct appeal that counsel was ineffective for failing to move...