People v. Seymore

• Decision Date: 20 November 2020
• Docket Number: KA 19-00343,1083
• Citation: 135 N.Y.S.3d 745,188 A.D.3d 1767
• Parties: The PEOPLE of the State of New York, RESPONDENT, v. Clifton SEYMORE, DEFENDANT-APPELLANT.
• Court: New York Supreme Court — Appellate Division

188 A.D.3d 1767

135 N.Y.S.3d 745

The PEOPLE of the State of New York, RESPONDENT,

v.Clifton SEYMORE, DEFENDANT-APPELLANT.

1083

KA 19-00343

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

November 20, 2020

KELIANN M. ARGY, ORCHARD PARK, FOR DEFENDANT-APPELLANT.

PRESENT: SMITH, J.P., PERADOTTO, CURRAN, BANNISTER, 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 assault in the second degree ( Penal Law § 120.05 [7] ), arising from an altercation defendant had with another inmate while confined in a correctional facility on a prior conviction. We note at the outset that defendant does not challenge the validity of his waiver of the right to appeal (see People v. Rosado-Thomas , 181 A.D.3d 1166, 1166, 118 N.Y.S.3d 492 [4th Dept. 2020], lv denied 35 N.Y.3d 1048, 127 N.Y.S.3d 840, 151 N.E.3d 521 [2020] ). Defendant contends that his plea was not knowingly, intelligently, and voluntarily entered. Although that contention survives the unchallenged appeal waiver (see People v. Thomas , 34 N.Y.3d 545, 558, 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. Seaberg , 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989] ), defendant failed to preserve his contention for our review because he did not move to withdraw the plea or to vacate the judgment of conviction (see People v. Lopez , 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ), and we conclude that this case does not fall within the narrow exception to the preservation requirement (see id. at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). In any event, the record demonstrates that defendant knowingly, voluntarily, and intelligently entered the guilty plea (see People v. Seeber , 4 N.Y.3d 780, 781-782, 793 N.Y.S.2d 826, 826 N.E.2d 797 [2005] ).

Defendant's challenge to the sufficiency of the factual allegations in the indictment does not survive the guilty plea or the appeal waiver (see People v. Guerrero , 28 N.Y.3d 110, 116, 42 N.Y.S.3d 80, 65 N.E.3d 51 [2016] ; People v. Oswold , 151 A.D.3d 1756, 1757, 55 N.Y.S.3d 568 [4th Dept. 2017], lv denied 29 N.Y.3d 1131, 64 N.Y.S.3d 681, 86 N.E.3d 573 [2017] ; People v. Briggs , 147 A.D.3d 1077, 1077, 46 N.Y.S.3d 902 [2d Dept. 2017], lv denied 29 N.Y.3d 1076, 64 N.Y.S.3d 166, 86 N.E.3d 253 [2017] ). Contrary to defendant's further assertion, the record establishes that defendant did not request a bill of particulars from the People pursuant to the requirements of CPL 200.95. Even assuming, arguendo, that such a request was made, any contention by defendant that he was denied due process of law by the People's failure to comply with a demand for a bill of particulars would be precluded by the appeal waiver (see People v. Vanvleet , 126 A.D.3d 1359, 1360, 4 N.Y.S.3d 797 [4th Dept. 2015], lv denied 26 N.Y.3d 1012, 20 N.Y.S.3d 552, 42 N.E.3d 222 [2015] ).

Defendant's contention that County Court erred in denying his request for substitution of his first attorney during a proceeding prior to the plea 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. Wellington , 169 A.D.3d 1440, 1441, 91 N.Y.S.3d 829 [4th Dept. 2019], lv denied 33 N.Y.3d 982, 101 N.Y.S.3d 262, 124 N.E.3d 751 [2019] ). As previously stated, however, defendant's challenge to the voluntariness of the plea is not preserved for our review (see People v. Rolfe , 83 A.D.3d 1219, 1220, 920 N.Y.S.2d 856 [3d Dept. 2011], lv denied 17 N.Y.3d 809, 929 N.Y.S.2d 569, 953 N.E.2d 807 [2011] ). In any event, to the extent that defendant's contention implicates the voluntariness of the plea, it is without merit inasmuch as the record establishes that defendant was, in fact, represented by a second attorney by the time of the plea proceeding, during which defendant expressed no concerns with the second attorney and instead confirmed that he was satisfied with that attorney's advice and representation (see People v. Lewicki , 118 A.D.3d 1328, 1328-1329, 987 N.Y.S.2d 755 [4th Dept. 2014], lv denied 23 N.Y.3d 1064, 994 N.Y.S.2d 323, 18 N.E.3d 1144 [2014] ).

Defendant contends that he was denied effective assistance of counsel, which rendered his plea involuntary, based on the first attorney's alleged failures to request a bill of particulars, investigate witnesses, demand other items of discovery, and sufficiently communicate with him. Defendant's contention survives his guilty plea and appeal waiver "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. Rausch , 126 A.D.3d 1535, 1535, 6 N.Y.S.3d 863 [4th Dept. 2015], lv denied 26 N.Y.3d 1149, 32 N.Y.S.3d 63, 51 N.E.3d 574 [2016] [internal quotation marks omitted]; see People v. Miller , 161 A.D.3d 1579, 1580, 76 N.Y.S.3d 737 [4th Dept. 2018], lv denied 31 N.Y.3d 1119, 81 N.Y.S.3d 379, 106 N.E.3d 762 [2018] ). To the extent that defendant's contention is reviewable on direct appeal, we conclude that it lacks merit inasmuch as he "received an advantageous plea, and ‘nothing in the record casts doubt on the apparent effectiveness of counsel’ " ( People v. Shaw , 133 A.D.3d 1312, 1313, 19 N.Y.S.3d 449 [4th Dept. 2015], lv denied 26 N.Y.3d 1150, 32 N.Y.S.3d 64, 51 N.E.3d 575 [2016], quoting People v. Ford , 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995] ). Defendant's contention that the first attorney was ineffective based on his failure to request a bill of particulars is without merit (see People v. Granger , 96 A.D.3d 1669, 1670, 947 N.Y.S.2d 310 [4th Dept. 2012], lv denied 19 N.Y.3d 1102, 955 N.Y.S.2d 558, 979 N.E.2d 819 [2012] ; People v. Moyer , 75 A.D.3d 1004, 1007, 906 N.Y.S.2d 175 [3d Dept. 2010] ; People v. Neal , 56 A.D.3d 1211, 1211, 867 N.Y.S.2d 612 [4th Dept. 2008], lv denied 12 N.Y.3d 761, 876 N.Y.S.2d 712, 904 N.E.2d 849 [2009] ). Defendant's contention otherwise " ‘involves matters outside the record on appeal and, thus, it must be raised by way of a motion pursuant to CPL article 440’ " ( People v. Spencer , 170 A.D.3d 1614, 1615, 94 N.Y.S.3d 503 [4th Dept. 2019] ; see People v. Goodwin , 159 A.D.3d 1433, 1435, 73 N.Y.S.3d 327 [4th Dept. 2018] ; People v. Resto , 147 A.D.3d 1331, 1334-1335, 47 N.Y.S.3d 522 [4th Dept. 2017], lv denied 29 N.Y.3d 1000, 57 N.Y.S.3d 722, 80 N.E.3d 415 [2017], reconsideration denied 29 N.Y.3d 1094, 63 N.Y.S.3d 10, 85 N.E.3d 105 [2017] ).

Defendant also contends that his third attorney, who appeared at sentencing on defendant's behalf after defendant waived his appearance, was ineffective because he had no knowledge of the case. We reject that contention. The record establishes that, although the third attorney had only recently taken over the case, he "was sufficiently familiar with the case and defendant's background to provide meaningful representation at sentencing" and appropriately advocated for defendant at sentencing ( People v. Saladeen , 12 A.D.3d 1179, 1180, 785 N.Y.S.2d 250 [4th Dept. 2004], lv denied 4 N.Y.3d 767, 792 N.Y.S.2d 11, 825 N.E.2d 143 [2005] ). We conclude that, "given the nature of defendant's criminal record and the criminal conduct herein, ... no [further] statement made by [the third attorney] at sentencing ‘would have had an impact on the sentence imposed’ " ( id. ).

Defendant's challenge to the severity of his sentence "is foreclosed by his unchallenged waiver of the right to appeal" ( Rosado-Thomas , 181 A.D.3d at 1167, 118 N.Y.S.3d 492 ; see People v. Putman , 163 A.D.3d 1461, 1461, 76 N.Y.S.3d 867 [4th Dept. 2018] ). Finally, we note that the plea proceeding and the sentence reflect defendant's status as a second violent felony offender ( Penal Law § 70.04 [1] [a], [b] ),...