People v. Murray

• Decision Date: 26 August 2021
• Docket Number: KA 18-00921,664
• Citation: 197 A.D.3d 1017,152 N.Y.S.3d 761
• Parties: The PEOPLE of the State of New York, Respondent, v. Furquan MURRAY, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

197 A.D.3d 1017
152 N.Y.S.3d 761

The PEOPLE of the State of New York, Respondent,
v.
Furquan MURRAY, Defendant-Appellant.

664
KA 18-00921

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

Entered: August 26, 2021

D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DARIENN P. BALIN OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, LINDLEY, TROUTMAN, AND WINSLOW, JJ.

197 A.D.3d 1017

MEMORANDUM AND ORDER

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 burglary in the first degree ( Penal Law § 140.30 [2] ). As an initial matter, defendant correctly contends and the People correctly concede that defendant did not validly waive his right to appeal. County Court "conflated the appeal waiver with the rights automatically waived by the guilty plea ... and thus the record fails to establish that defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" ( People v. Walker , 171 A.D.3d 1501, 1502, 97 N.Y.S.3d 551 [4th Dept. 2019], lv denied 33 N.Y.3d 1074, 105 N.Y.S.3d 49, 129 N.E.3d 369 [2019] [internal quotation marks omitted]). The court also "mischaracterized the nature of the right that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal, and there was no clarification that appellate review remained available for certain issues" ( People v. Hussein , 192 A.D.3d 1705, 1706, 141 N.Y.S.3d 379 [4th Dept. 2021], lv denied 37 N.Y.3d 965, 148 N.Y.S.3d 769, 171 N.E.3d 245 [2021] ; see People v. Thomas , 34 N.Y.3d 545, 565-566, 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] ).

197 A.D.3d 1018

Defendant contends that the court abused its discretion in denying his request to substitute counsel (see generally People v. Porto , 16 N.Y.3d 93, 99-100, 917 N.Y.S.2d 74, 942 N.E.2d 283 [2010] ). Although that contention is not encompassed by his guilty plea inasmuch as, under the circumstances presented here, it "implicates the voluntariness of the plea" ( People v. Jones , 173 A.D.3d 1628, 1630, 102 N.Y.S.3d 365 [4th Dept. 2019] [internal quotation marks omitted]; cf. 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] ), we nonetheless conclude that it is without merit. Contrary to defendant's contention, this is not a case where, "[a]fter refusing to allow defendant to articulate his complaints about defense counsel, the court essentially gave defendant an ultimatum: plead guilty with present counsel or proceed to trial with present counsel" ( Jones , 173 A.D.3d at 1630, 102 N.Y.S.3d 365 ). Instead, the court "afforded defendant [multiple] opportunit[ies] to express his objections concerning defense counsel, and ... thereafter reasonably concluded that defendant's objections were without merit" ( People v. Bethany , 144 A.D.3d 1666, 1669, 42 N.Y.S.3d 495 [4th Dept. 2016], lv denied 29 N.Y.3d 996, 57 N.Y.S.3d 717, 80 N.E.3d 410 [2017],

152 N.Y.S.3d 763

cert denied ––– U.S. ––––, 138 S. Ct. 1571, 200 L.Ed.2d 760 [2018] ; see People v. Spencer , 185 A.D.3d 1440, 1441, 127 N.Y.S.3d 670 [4th Dept. 2020] ). Further, although it denied defendant's request to discharge assigned counsel, the court did assign a second counsel to assist in defendant's defense and relieve any purported tension between defendant and his original counsel.

Next, even assuming, arguendo, that defendant's pro se oral motion at sentencing to withdraw his guilty plea preserved for our review his contention that his plea was not knowing, intelligent, and voluntary based on the grounds now raised on appeal (see People v. Kosmetatos , 178 A.D.3d 1433, 1434, 115 N.Y.S.3d 789 [4th Dept. 2019], lv...