People v. Small

• Decision Date: 02 March 2022
• Docket Number: 2019-09897,Ind. No. 17-00986
• Parties: The PEOPLE, etc., respondent, v. Paul SMALL, appellant.
• Court: New York Supreme Court — Appellate Division

203 A.D.3d 756

160 N.Y.S.3d 651 (Mem)

The PEOPLE, etc., respondent,

v.Paul SMALL, appellant.

2019-09897

Ind. No. 17-00986

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

Submitted—December 17, 2021

March 2, 2022

Jerry F. Kebrdle II, White Plains, NY, for appellant.

Miriam E. Rocah, District Attorney, White Plains, N.Y. (Christine DiSalvo and William C. Milaccio of counsel), for respondent.

MARK C. DILLON, J.P., COLLEEN D. DUFFY, LINDA CHRISTOPHER, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Westchester County (Barry E. Warhit, J.), rendered August 1, 2018, convicting him of robbery in the first degree, criminal possession of a weapon in the second degree, assault in the second degree, and driving while intoxicated, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the People's contention, the defendant's purported waiver of the right to appeal was invalid. The record reflects that the County Court made its own offer of sentence to the defendant and required the defendant to waive his right to appeal, without setting forth any reason for demanding an appeal waiver (see People v. Esposito, 187 A.D.3d 781, 130 N.Y.S.3d 331 ; People v. Sutton, 184 A.D.3d 236, 244–245, 125 N.Y.S.3d 739 ). Moreover, the court's oral colloquy improperly suggested that the waiver encompassed an absolute bar to the taking of a direct appeal (see People v. Thomas, 34 N.Y.3d 545, 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Seymour, 189 A.D.3d 1269, 1270, 134 N.Y.S.3d 211 ). Thus, the defendant's purported waiver of the right to appeal does not preclude appellate review of his challenge to the plea allocution.

However, the defendant's contentions that the plea allocution was insufficient because it was conducted by the prosecutor and elicited only one-word responses are unpreserved for appellate review (see People v. Najera, 170 A.D.3d 753, 754–755, 94 N.Y.S.3d 175 ) and, in any event, without merit (see id. at 755, 94 N.Y.S.3d 175 ; People v. Singh, 158 A.D.3d 824, 825, 68 N.Y.S.3d 888 ; People v. Johnson, 140 A.D.3d 1188, 1189, 35 N.Y.S.3d 375 ).

Further, the defendant argues that his plea of guilty was not knowingly, voluntarily, and intelligently entered because the County Court failed to inquire into whether he was aware of a possible intoxication defense. However, contrary to the defendant's contention, his plea of guilty was knowingly, voluntarily, and intelligently entered (see People v. Harris, 61 N.Y.2d 9, 471 N.Y.S.2d 61, 459 N.E.2d 170 ; People v. Murry, 185 A.D.3d 722, 124 N.Y.S.3d 843 ).

The defendant's claim of ineffective assistance of counsel cannot be reviewed on direct appeal because it is based on matter outside the record (see People v. Stewart, 200 A.D.3d 723, 723, 154 N.Y.S.3d 843 ; People v. Rohlehr, 87 A.D.3d 603, 604, 927 N.Y.S.2d 919 ; People v. Miller, 68 A.D.3d 1135, 1135, 892 N.Y.S.2d 152 ). " ‘The appropriate vehicle ... to allege ineffective assistance of counsel grounded in allegations referring to facts outside of the ......