People v. Romanowski, 2021-04321

CourtUnited States State Supreme Court (New York)
PartiesTHE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. MICHAEL ROMANOWSKI, DEFENDANT-APPELLANT.
Decision Date09 July 2021
Docket Number2021-04321

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.

MICHAEL ROMANOWSKI, DEFENDANT-APPELLANT.

No. 2021-04321

Supreme Court of New York, Fourth Department

July 9, 2021


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

JEFFREY S. CARPENTER, DISTRICT ATTORNEY, HERKIMER (ROBERT R. CALLI, JR., OF COUNSEL), FOR RESPONDENT.

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

Appeal from a judgment of the Herkimer County Court (John H. Crandall, J.), rendered October 11, 2017. The judgment convicted defendant, upon his plea of guilty, of grand larceny in the fourth 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 grand larceny in the fourth degree (Penal Law § 155.30 [1]). Preliminarily, we agree with defendant that he did not validly waive his right to appeal (see People v Thomas, 34 N.Y.3d 545, 564-566 [2019], cert denied — U.S. —, 140 S.Ct. 2634 [2020]; People v Powell, 140 A.D.3d 401, 401 [1st Dept 2016], lv denied 28 N.Y.3d 1074 [2016]).

Defendant contends that County Court improperly denied his purported request to represent himself. Even assuming, arguendo, that defendant's contention survives his guilty plea (see People v Best, 186 A.D.3d 845, 846 [2d Dept 2020], appeal dismissed 36 N.Y.3d 926 [2020]), we reject it on the merits because he did not" 'clearly and unconditionally'" seek to proceed pro se (People v LaValle, 3 N.Y.3d 88, 106 [2004]; see People v Ramos, 35 A.D.3d 247, 247 [1st Dept 2006], lv denied 8 N.Y.3d 926 [2007]). Rather, defendant merely noted the existence of his right to represent himself. Noting the existence of a right is not equivalent to invoking that right, and given that defendant never actually invoked his right to represent himself, the court had no obligation to conduct "a full inquiry... as to whether it should permit him to proceed pro se" (People v Richards, 118 A.D.3d 599, 600 [1st Dept 2014], lv denied 24 N.Y.3d 1088 [2014]; see People v Johnson, 55 A.D.3d 328, 328 [1st Dept 2008], lv denied 11 N.Y.3d 926 [2009]).

Defendant further contends that defense counsel was ineffective for failing to craft a successful motion to dismiss the indictment under CPL 190.50 (5). To the extent it survives the guilty plea, we reject defendant's contention because he "failed to establish that a successful motion [on that basis] could have been made under...

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