People v. Romanowski

• Court: New York Supreme Court — Appellate Division
• Citation: People v. Romanowski, 196 A.D.3d 1081, 149 N.Y.S.3d 740 (N.Y. App. Div. 2021)
• Decision Date: 09 July 2021
• Docket Number: KA 17-01652,1154
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael ROMANOWSKI, Defendant-Appellant.

196 A.D.3d 1081

149 N.Y.S.3d 740

The PEOPLE of the State of New York, Respondent,

v.Michael ROMANOWSKI, Defendant-Appellant.

1154

KA 17-01652

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

Entered: July 9, 2021

PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND DEJOSEPH, JJ.

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 two counts of grand larceny in the third degree ( Penal Law § 155.35 [1] ) under counts 9 and 10 of the indictment. Preliminarily, we agree with defendant that his waiver of the right to appeal is invalid (see People v. Thomas , 34 N.Y.3d 545, 564-566, 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] ; People v. Somers , 186 A.D.3d 1111, 1112, 127 N.Y.S.3d 399 [4th Dept. 2020], lv denied 36 N.Y.3d 976, 138 N.Y.S.3d 495, 162 N.E.3d 724 [2020] ).

Relying on People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 (1988), defendant contends that County Court erred in accepting his guilty plea to count 10 because, during the plea colloquy, the prosecutor purportedly negated a statutory element of the crime charged. Defendant's contention is unpreserved for appellate review (see CPL 470.05 [2] ) and, in any event, it lacks merit for the following two independent reasons.

First, as the Court of Appeals repeatedly underscored in Lopez , only where the "defendant's factual recitation" negates, inter alia, a statutory element of the pleaded-to offense is the court barred from "accept[ing] the plea without making further inquiry" ( 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [emphasis added]).

Consequently, a guilty "plea will not be vacated where ... the defendant does not negate an element of the pleaded-to offense during the colloquy" ( People v. Madden , 148 A.D.3d 1576, 1578, 52 N.Y.S.3d 176 [4th Dept. 2017], lv denied 29 N.Y.3d 1034, 62 N.Y.S.3d 303, 84 N.E.3d 975 [2017] [emphasis added]). Here, it is undisputed that defendant himself said nothing during the plea colloquy to negate a statutory element of the crime charged. Rather, the purported negation came only from the prosecutor. The Lopez rubric is thus categorically inapplicable (see People v. Pastor , 28 N.Y.3d 1089, 1090-1091, 45 N.Y.S.3d 317, 68 N.E.3d 42 [2016] ; People v. Seeber , 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797 [2005] ).

Second, the prosecutor did not actually negate a statutory element of the crime to which defendant was pleading guilty under count 10, i.e., grand larceny in the third degree. Among the statutorily delineated elements of that crime is an intent to effect a permanent or quasi-permanent deprivation or appropriation of the victim's property at the time of its taking (see Penal Law §§ 155.00 [3], [4] ; 155.05 [1]; People v. Jennings , 69 N.Y.2d 103, 118-119, 512 N.Y.S.2d 652, 504 N.E.2d 1079 [1986] ; Wilson v. People , 39 N.Y. 459, 461 [1868] ), and it is well established that a defendant's voluntary and prompt return of stolen property could potentially undermine that element (see Jennings , 69 N.Y.2d at 116-119, 512 N.Y.S.2d 652, 504 N.E.2d 1079 ; People v. Camelo , 48 A.D.3d 1303, 1304-1305, 852 N.Y.S.2d 533 [4th Dept. 2008] ; People v. O'Reilly , 125 A.D.2d 979, 979, 510 N.Y.S.2d 375 [4th Dept. 1986] ). Here, however, the prosecutor never said that defendant returned the stolen property to the victim, much less that he did so under circumstances suggesting that he had not intended to effect a permanent or quasi-permanent deprivation or appropriation thereof. Rather, the prosecutor said only that the victim "did get the [stolen property] back," without identifying who returned the property or how that return was accomplished. Under the literal terms of the prosecutor's statement, the police could have returned the stolen property after seizing it from defendant, or defendant could have returned the stolen property in a post-arrest effort to secure leniency. Neither scenario would negate an intent to effect a permanent or quasi-permanent deprivation or appropriation of the victim's property at the time of its taking (see e.g. People v. Brooks , 79 N.Y.2d 1043, 1045, 584 N.Y.S.2d 1010, 596 N.E.2d 408 [1992], cert denied 506 U.S. 899, 113 S.Ct. 282, 121 L.Ed.2d 208 [1992] ). Thus, even had the prosecutor's statement been made by defendant, no "further inquiry" would have been necessary before the court accepted defendant's guilty plea to count 10 ( Lopez , 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; see People v. Ollman , 147 A.D.3d 1452, 1453, 46 N.Y.S.3d 380 [4th Dept. 2017], lv denied 29 N.Y.3d 1000, 57 N.Y.S.3d 721, 80 N.E.3d 414 [2017] ; cf. People v. Burroughs , 106 A.D.3d 1512, 1512, 964 N.Y.S.2d 389 [4th Dept. 2013] ).

Defendant further argues that his lawyer was ineffective for failing to seek a change of venue and for failing to seek the trial judge's recusal. Defendant's argument, to the extent it survives his guilty plea (see People v. Barnes , 32 A.D.3d 1250, 1251, 821 N.Y.S.2d 541 [4th Dept. 2006] ), implicates matters outside the record and must therefore be raised, if at all, pursuant to CPL 440.10 (see People v. Williams , 41 A.D.3d 1252, 1254, 838 N.Y.S.2d 319 [4th Dept. 2007] ; People v. Harry , 130 A.D.2d 591, 592, 515 N.Y.S.2d 527 [2d Dept. 1987] ).

The sentence is not unduly harsh or severe. Defendant's related contention that his sentence constitutes cruel and unusual punishment is unpreserved and, in any event, is without...