People v. Johnson

• Decision Date: 18 November 2022
• Docket Number: 870 KA 19-02268
• Citation: 2022 NY Slip Op 06601
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. TREVON JOHNSON, ALSO KNOWN AS JOHN DOE, DEFENDANT-APPELLANT.
• Court: New York Supreme Court — Appellate Division

2022 NY Slip Op 06601

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
TREVON JOHNSON, ALSO KNOWN AS JOHN DOE, DEFENDANT-APPELLANT.

No. 870 KA 19-02268

Supreme Court of New York, Fourth Department

November 18, 2022

THE SAGE LAW FIRM GROUP PLLC, BUFFALO (KATHRYN FRIEDMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MERIDETH H. SMITH OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, WINSLOW, AND BANNISTER, JJ.

Appeal from a judgment of the Supreme Court, Monroe County (Judith A. Sinclair, J.), rendered April 15, 2019. The judgment convicted defendant upon a plea of guilty of robbery in the first degree.

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 [4]). As an initial matter, we agree with defendant that he did not validly waive his right to appeal because Supreme Court's oral colloquy and the written waiver of the right to appeal provided defendant with erroneous information about the scope of the waiver and failed to identify that certain rights would survive the waiver (see People v Thomas, 34 N.Y.3d 545, 565-566 [2019], cert denied __ U.S. __, 140 S.Ct. 2634 [2020]; People v Clark, 191 A.D.3d 1471, 1472 [4th Dept 2021], lv denied 36 N.Y.3d 1118 [2021]). However, his further contention that he was denied effective assistance of counsel survives his plea "only insofar as he demonstrates that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of [his] attorney['s] allegedly poor performance" (People v Miller, 161 A.D.3d 1579, 1580 [4th Dept 2018], lv denied 31 N.Y.3d 1119 [2018] [internal quotation marks omitted]). To the extent that defendant's contention involves matters outside of the record on appeal, including the frequency and content of his conversations with his attorney, it must be raised by way of a motion pursuant to CPL article 440 (see People v Graham, 171 A.D.3d 1559, 1560 [4th Dept 2019], lv denied 33 N.Y.3d 1069 [2019]; People v Spencer, 170 A.D.3d 1614, 1615 [4th Dept 2019], lv denied 37 N.Y.3d 974 [2021]). To the extent that defendant's contention is reviewable on direct appeal, we conclude that it is without merit (see generally People v Baldi, 54 N.Y.2d 137, 147 [1981]; People v Kosmetatos, 178 A.D.3d...