People v. Graham

• Decision Date: 01 October 2010
• Citation: 77 A.D.3d 1439,908 N.Y.S.2d 490
• Parties: The PEOPLE of the State of New York, Respondent, v. Darrell GRAHAM, Defendant-Appellant. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

908 N.Y.S.2d 490 77 A.D.3d 1439 The PEOPLE of the State of New York, Respondent, v. Darrell GRAHAM, Defendant-Appellant. (Appeal No. 1.) Supreme Court, Appellate Division, Fourth Department, New York. Oct. 1, 2010.

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of Counsel), for Defendant-Appellant.

Darrell Graham, Defendant-Appellant Pro Se.

Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND PINE, JJ.

MEMORANDUM:

In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (§ 265.03[3] ). Contrary to the contention of defendant in each appeal, we conclude that he validly waived his right to appeal. Supreme Court made clear that the waiver of the right to appeal was a condition of each plea, not a consequence thereof, and the record reflects that defendant understood that the waiver of the right to appeal was " separate and distinct from those rights automatically forfeited upon a plea of guilty" ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145; see People v. Dillon, 67 A.D.3d 1382, 890 N.Y.S.2d 221). Contrary to the contention of defendant in appeal No. 2, "[t]rial courts are not required to engage in any particular litany during an allocution in order to obtain a valid guilty plea in which defendant waives a plethora of rights," including the right to appeal ( People v. Moissett, 76 N.Y.2d 909, 910-911, 563 N.Y.S.2d 43, 564 N.E.2d 653). Thus, his "waiver [of the right to appeal] is not invalid on the ground that the court did not specifically inform [him] that his general waiver of the right to appeal encompassed the court's suppression rulings" ( People v. Tantao, 41 A.D.3d 1274, 1275, 838 N.Y.S.2d 757, lv. denied 9 N.Y.3d 882, 842 N.Y.S.2d 794, 874 N.E.2d 761), and his waiver of the right to appeal thus encompasseshis challenge to the court's suppression ruling in appeal No. 2 ( 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, 1266, 858 N.Y.S.2d 642, lv. denied 11 N.Y.3d 736, 864 N.Y.S.2d 395, 894 N.E.2d 659). The contention of defendant in appeal No. 1 that he was prejudiced by alleged prosecutorial misconduct during the grand jury proceeding is likewise forfeited by his valid waiver of the right to appeal ( see People v. Di Raffaele, 55 N.Y.2d 234, 240, 448 N.Y.S.2d 448, 433 N.E.2d 513).

Although the contention of defendant in his pro se supplemental brief that his guilty plea in each appeal was not knowingly and intelligently entered survives his waiver of the right to appeal, defendant failed to preserve his contention for our review by failing to move to withdraw his pleas or to vacate the judgments of conviction ( see People v. Brown, 66 A.D.3d 1385, 885 N.Y.S.2d 660, lv. denied 14 N.Y.3d 839, 901 N.Y.S.2d 145, 927 N.E.2d 566; 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). To the extent that the further contention of defendant in his pro se supplemental brief concerning alleged ineffective assistance of counsel in each appeal survives the plea and the waiver of the right to appeal ( see People v. Wright, 66 A.D.3d 1334, 885 N.Y.S.2d 794, lv. denied 13 N.Y.3d 912, 895 N.Y.S.2d 326, 922 N.E.2d 915), we conclude that his contention lacks merit ( see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265). Indeed, there...