People v. Toledo

Decision Date17 November 2016
Citation144 A.D.3d 1332,40 N.Y.S.3d 680,2016 N.Y. Slip Op. 07720
Parties The PEOPLE of the State of New York, Respondent, v. Robert TOLEDO, Appellant.
CourtNew York Supreme Court — Appellate Division

144 A.D.3d 1332
40 N.Y.S.3d 680
2016 N.Y. Slip Op. 07720

The PEOPLE of the State of New York, Respondent,
v.
Robert TOLEDO, Appellant.

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

Nov. 17, 2016.


40 N.Y.S.3d 681

Thomas F. Garner, Middleburgh, for appellant, and appellant pro se.

James E. Conboy, District Attorney, Fonda (Sarah J. Leszczynski of counsel), for respondent.

Before: McCARTHY, J.P., GARRY, LYNCH, DEVINE and CLARK, JJ.

McCARTHY, J.P.

144 A.D.3d 1332

Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered October 27, 2014, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

In satisfaction of a four-count indictment, defendant pleaded guilty to criminal sale of a controlled substance in the third degree, admitting that he sold heroin in exchange for cash. Pursuant to the plea agreement, defendant waived his right to appeal and was sentenced, as a second felony drug offender, to a prison term of eight years with three years of postrelease supervision. Defendant now appeals.

We affirm. Initially, contrary to defendant's contentions, his combined oral and written waiver of appeal was knowing, voluntary and intelligent (see People v. Sanders, 25 N.Y.3d 337, 339–341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2016] ; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2009] ; cf. People v. Bradshaw, 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ). The record reflects that defendant was advised that an appeal waiver was a condition of the plea deal, was informed that he ordinarily retained the right to appeal his conviction and sentence “to a higher court” but that the People were requiring that he give up that right and, after conferring with counsel throughout the colloquy, defendant accepted this condition of the plea. The record belies his claim that County Court intimated that the waiver was an automatic consequence of his guilty plea, as the court completed its discussion of the trial-related rights automatically forfeited by the plea and then separately addressed the waiver of appeal, while specifying that it was a condition of the People's offer, without lumping it with the trial

144 A.D.3d 1333

rights (see People v. Lopez, 6 N.Y.3d at 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Forget, 136 A.D.3d 1115, 1116, 24 N.Y.S.3d 793 [2016], lv. denied 28 N.Y.3d 929, 40 N.Y.S.3d 357, 63 N.E.3d 77 [2016] ). Defendant then executed a written waiver after reviewing it with counsel that made clear that the waiver of appeal was separate and distinct from the rights automatically forfeited by his plea and reflected defendant's understanding of the waiver (see People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Given the valid appeal waiver, defendant is precluded from challenging the negotiated sentence as harsh and excessive (see id. at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).

While defendant's challenge to the voluntariness of his plea survives his appeal waiver, it is unpreserved for our review in the absence of an appropriate postallocution motion (see CPL 220.60[2] ; People v. Williams, 27 N.Y.3d 212, 214, 219–222, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ; People v. Blair, 136 A.D.3d 1105, 1006, 24 N.Y.S.3d 451 [2016], lvs. denied 27 NY3d 1066, 1072, 38 N.Y.S.3d 836, 843, 60 N.E.3d 1202, 1209 [2016] ), and he did not make any statement during the plea allocution that triggered the narrow exception to the preservation requirement (see People

40 N.Y.S.3d 682

v. Lopez, 71 N.Y.2d 662, 666–667, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). Defendant's claim that County Court failed to adequately advise him of his constitutional, trial-related Boykin rights (see Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 [1969] ) that he was forfeiting by his plea was not preserved despite an opportunity to do so; moreover, the record reflects that he was fully advised and understood the waiver of his trial rights (see People v. Conceicao, 26 N.Y.3d 375, 379, 381–384, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ). Further, it was not necessary, as he now contends, that he personally recite the elements of the crime, as his affirmative responses to the court's questions were sufficient (see People v. Griffith, 136 A.D.3d 1114, 1115, 25 N.Y.S.3d 400 [2016] ).

To the extent that defendant's ineffective assistance of counsel claims implicate the voluntariness of his plea, they survive his appeal waiver, but they are also not properly before us because he never moved to withdraw his plea on this ground (see People v. Islam, 134 A.D.3d 1348, 1349, 21 N.Y.S.3d 648 [2015] ).1 While defendant had unsuccessfully requested the assignment of a new attorney in an earlier proceeding at which he rejected an initial plea offer, he chose at the next appearance to proceed with the plea and did not thereafter move to withdraw his plea. Moreover, defendant failed to articulate good cause to replace assigned counsel, such as a conflict of interest or irreconcilable differences, and we discern no abuse of discretion in County Court's denial of this request (see

People v. Smith, 18 N.Y.3d 588, 592–593, 942 N.Y.S.2d 5, 965 N.E.2d 232 [2012] ; People v. Khan, 139 A.D.3d 1261, 1264, 31 N.Y.S.3d 671 [2016], lvs. denied 28 N.Y.3d 932, 934, 40 N.Y.S.3d 360, ––––, 63 N.E.3d 80, –––– [2016] ). In that regard, defendant's generalized complaint that counsel had not...

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  • People v. Garrow
    • United States
    • New York Supreme Court Appellate Division
    • February 9, 2017
    ...explaining that it was a condition of the plea agreement, without lumping it with those trial-related rights (see People v. Toledo, 144 A.D.3d 1332, 1332–1333, 40 N.Y.S.3d 680 [2016] ; People v. Forget, 136 A.D.3d 1115, 1116, 24 N.Y.S.3d 793 [2016], lv. denied 28 N.Y.3d 929, 40 N.Y.S.3d 357......
  • People v. Fay, 107274.
    • United States
    • New York Supreme Court Appellate Division
    • October 26, 2017
    ...to dismiss, the issue is not preserved for our review as defendant failed to raise this issue before County Court (see People v. Toledo, 144 A.D.3d 1332, 1334 n. 2, 40 N.Y.S.3d 680 [2016], lv. denied 29 N.Y.3d 1001, 57 N.Y.S.3d 723, 80 N.E.3d 416 [2017] ). In any event, were this speedy tri......
  • People v. Brown
    • United States
    • New York Supreme Court Appellate Division
    • October 5, 2017
    ...marks and citation omitted]; see People v. Smith, 18 N.Y.3d 588, 592, 942 N.Y.S.2d 5, 965 N.E.2d 232 [2012] ; People v. Toledo, 144 A.D.3d 1332, 1333–1334, 40 N.Y.S.3d 680 [2016], lv. denied 29 N.Y.3d 1001, 57 N.Y.S.3d 723, 80 N.E.3d 416 [2017] ). Among the factors that County Court may ass......
  • People v. Gardiner, 108482
    • United States
    • New York Supreme Court Appellate Division
    • March 22, 2018
    ...this claim was forfeited by defendant's guilty plea and is also foreclosed by his unchallenged appeal waiver (see People v. Toledo, 144 A.D.3d 1332, 1334 n. 2, 40 N.Y.S.3d 680 [2016], lv denied 29 N.Y.3d 1001, 57 N.Y.S.3d 723, 80 N.E.3d 416 [2017] ; People v. Wright, 119 A.D.3d 972, 973 n. ......
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