People v. Kates, 638

• Court: New York Supreme Court Appellate Division
• Citation: 162 A.D.3d 1627,78 N.Y.S.3d 600
• Docket Number: 638,KA 15–01174
• Parties: The PEOPLE of the State of New York, Respondent, v. Alexander KATES, Defendant–Appellant. (Appeal No. 1.)
• Decision Date: 15 June 2018

162 A.D.3d 1627
78 N.Y.S.3d 600

The PEOPLE of the State of New York, Respondent,
v.
Alexander KATES, Defendant–Appellant. (Appeal No. 1.)

638
KA 15–01174

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

Entered: June 15, 2018

CATHERINE H. JOSH, ROCHESTER, FOR DEFENDANT–APPELLANT.

ALEXANDER KATES, DEFENDANT–APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, TROUTMAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

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

Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of kidnapping in the second degree ( Penal Law § 135.20 ). The plea satisfied several charges arising from an incident in which defendant, in concert with two other men, among other things, bound and threatened three family members inside their own apartment, obtained keys and the alarm code to the victims' jewelry store, and then stole jewelry from the store. In appeal No. 2, defendant appeals by permission of this Court from an order that, inter alia, denied his motion pursuant to CPL 440.10 seeking to vacate the judgment of conviction. We affirm in both appeals.

Addressing first the judgment in appeal No. 1, although defendant contends in his pro se supplemental brief that the felony complaints were jurisdictionally defective, "[t]he felony complaint[s were] superseded by the indictment to which defendant pleaded guilty, and he therefore may not challenge the felony complaint[s]" on appeal ( People v. Anderson, 90 A.D.3d 1475, 1477, 935 N.Y.S.2d 237 [4th Dept. 2011], lv denied 18 N.Y.3d 991, 945 N.Y.S.2d 646, 968 N.E.2d 1002 [2012] ; see People v. Mitchell, 132 A.D.3d 1413, 1416, 17 N.Y.S.3d 563 [4th Dept. 2015], lv denied 27 N.Y.3d 1072, 38 N.Y.S.3d 842, 60 N.E.3d 1208 [2016] ).

Contrary to defendant's contention in his pro se supplemental brief, the record establishes that his waiver of the right to appeal was knowing, intelligent, and voluntary (see People v. Joubert, 158 A.D.3d 1314, 1315, 68 N.Y.S.3d 375 [4th Dept. 2018], lv denied ––– N.Y.3d ––––, 78 N.Y.S.3d 284, 102 N.E.3d 1063, 2018 WL 2169456 [Apr. 26, 2018] [2018] ; People v. Smith, 138 A.D.3d 1497, 1497, 29 N.Y.S.3d 217 [4th Dept. 2016], lv. denied 27 N.Y.3d 1139, 39 N.Y.S.3d 121, 61 N.E.3d 520 [2016] ; see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). We conclude that

78 N.Y.S.3d 603

the valid waiver of the right to appeal forecloses our review of defendant's challenges in his main brief to County Court's adverse suppression ruling (see People v. Sanders, 25 N.Y.3d 337, 342, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ; People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 [1999] ). Defendant further contends in his pro se supplemental brief that he was arrested without probable cause and thus that the court should have granted that part of his motion seeking suppression of all evidence obtained as a result of his arrest. That contention is also encompassed by his valid waiver of the right to appeal (see Sanders, 25 N.Y.3d at 342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; Kemp, 94 N.Y.2d at 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 ) and, moreover, defendant forfeited the right to raise that suppression issue on appeal inasmuch as he pleaded guilty before the court issued a ruling thereon (see People v. Fernandez, 67 N.Y.2d 686, 688, 499 N.Y.S.2d 919, 490 N.E.2d 838 [1986] ; People v. Russell, 128 A.D.3d 1383, 1384, 7 N.Y.S.3d 790 [4th Dept. 2015], lv denied 25 N.Y.3d 1207, 16 N.Y.S.3d 529, 37 N.E.3d 1172 [2015] ).

We reject defendant's contention in his main brief that the court failed to make an appropriate inquiry into his request for substitution of his assigned counsel, which he made during an appearance prior to the plea proceeding. Defendant's contention " ‘is encompassed by the plea and the waiver of the right to appeal except to the extent that the contention implicates the voluntariness of the plea’ " ( People v. Morris, 94 A.D.3d 1450, 1451, 942 N.Y.S.2d 725 [4th Dept. 2012], lv denied 19 N.Y.3d 976, 950 N.Y.S.2d 358, 973 N.E.2d 768 [2012] ; see People v. Guantero, 100 A.D.3d 1386, 1387, 953 N.Y.S.2d 438 [4th Dept. 2012], lv denied 21 N.Y.3d 1004, 971 N.Y.S.2d 256, 993 N.E.2d 1278 [2013] ). Defendant nonetheless "abandoned his request for new counsel when he ‘decid[ed] ... to plead guilty while still being represented by the same attorney’ " ( Guantero, 100 A.D.3d at 1387, 953 N.Y.S.2d 438 ; see Morris, 94 A.D.3d at 1451, 942 N.Y.S.2d 725 ). In any event, defendant's contention lacks merit inasmuch as the record establishes that "the court made a sufficient inquiry into defendant's complaints concerning the alleged [breakdown in] communication between defendant and defense counsel. The court repeatedly allowed defendant to air his concerns about defense counsel, and after listening to them reasonably concluded that defendant's vague and generic objections had no merit or substance ..., and thus defendant's objections were insufficient to demonstrate good cause for substitution of counsel" ( People v. Larkins, 128 A.D.3d 1436, 1441, 8 N.Y.S.3d 755 [4th Dept. 2015], lv denied 27 N.Y.3d 1001, 38 N.Y.S.3d 110, 59 N.E.3d 1222 [2016] [internal quotation marks omitted]; see People v. Linares, 2 N.Y.3d 507, 510–511, 780 N.Y.S.2d 529, 813 N.E.2d 609 [2004] ). " ‘[A]t most, defendant's allegations evinced disagreements with counsel over strategy ..., which were not sufficient grounds for substitution’ " ( Larkins, 128 A.D.3d at 1440, 8 N.Y.S.3d 755 ; see Linares, 2 N.Y.3d at 511, 780 N.Y.S.2d 529, 813 N.E.2d 609 ).

Defendant further contends in his main brief that his plea was not voluntarily entered because he was not informed of its direct consequences prior to pleading guilty. We reject that contention. "It is well settled that, in order for a plea to be knowingly, voluntarily and intelligently entered, a defendant must be advised of the direct consequences of that plea" ( People v. Jones, 118 A.D.3d 1360, 1361, 988 N.Y.S.2d 316 [4th Dept. 2014] ; see People v. Harnett, 16 N.Y.3d 200, 205, 920 N.Y.S.2d 246, 945 N.E.2d 439 [2011] ;

78 N.Y.S.3d 604

People v. Catu, 4 N.Y.3d 242, 244, 792 N.Y.S.2d 887, 825 N.E.2d 1081 [2005] ). "The direct consequences of a plea—those whose omission from a plea colloquy makes the plea per se invalid—are essentially the core components of a defendant's sentence: a term of probation or imprisonment, a term of postrelease supervision, a fine" ( Harnett, 16 N.Y.3d at 205, 920 N.Y.S.2d 246, 945 N.E.2d 439 ). Here, although defendant's contention concerning the voluntariness of the plea survives his valid waiver of the right to appeal (see People v. Neal, 148 A.D.3d 1699, 1699–1700, 50 N.Y.S.3d 666 [4th Dept. 2017], lv denied 29 N.Y.3d 1084, 64 N.Y.S.3d 173, 86 N.E.3d 260 [2017] ), preservation was required inasmuch as defendant was advised of the sentence, including its period of postrelease supervision, during the plea proceeding, and defendant failed to preserve his contention for our review because he did not move to withdraw the plea on that ground or otherwise object to the imposition of the sentence (see People v. Williams, 27 N.Y.3d 212, 219–223, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ; People v. Crowder, 24 N.Y.3d 1134, 1136–1137, 26 N.E.3d 1164 [2015] ; People v. Murray, 15 N.Y.3d 725, 726–727, 906 N.Y.S.2d 521, 932 N.E.2d 877 [2010] ; cf. People v. Louree, 8 N.Y.3d 541, 545–546, 838 N.Y.S.2d 18, 869 N.E.2d 18 [2007] ). In any event, we conclude that defendant's challenge to the voluntariness of the plea is without merit inasmuch as the record establishes that he was advised during the plea proceeding of the direct consequences of his plea, including the term of imprisonment and period of postrelease supervision (see People v. Munn, 105 A.D.3d 1456, 1456, 963 N.Y.S.2d 914 [4th Dept. 2013], lv denied 21 N.Y.3d 1007, 971 N.Y.S.2d 258, 993 N.E.2d 1281 [2013], reconsideration denied 22 N.Y.3d 1042, 981 N.Y.S.2d 376, 4 N.E.3d 388 [2013] ; People v. Ivey, 98 A.D.3d 1230, 1231, 951 N.Y.S.2d 279 [4th Dept. 2012], lv denied 20 N.Y.3d 1012, 960 N.Y.S.2d 355, 984 N.E.2d 330 [2013] ; People v. McPherson, 60 A.D.3d 872, 872, 875 N.Y.S.2d 539 [2d Dept. 2009] ).

To the extent that defendant challenges the factual sufficiency of his plea allocution in his pro se supplemental brief, that challenge is encompassed by the valid waiver of the right to appeal (see People v. Busch, 60 A.D.3d 1393, 1394, 876 N.Y.S.2d 798 [4th Dept. 2009], lv denied 12 N.Y.3d 913, 884 N.Y.S.2d 694, 912 N.E.2d 1075 [2009] ). Although defendant's further contention in his pro se supplemental brief that his plea was involuntary survives his waiver of the right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989] ), defendant failed to preserve that contention for our review inasmuch as he did not move to withdraw his plea or to vacate the judgment of conviction on the grounds now raised on appeal (see People v. VanDeViver, 56 A.D.3d 1118, 1118, 867 N.Y.S.2d 586 [4th Dept. 2008], lv. denied 11 N.Y.3d 931, 874 N.Y.S.2d 16, 902 N.E.2d 450 [2009], reconsideration denied 12 N.Y.3d 788, 879 N.Y.S.2d 65, 906 N.E.2d 1099 [2009] ), and this case does not fall within the narrow exception to the preservation requirement (see People v....