| People v Wolz |
| 2013 NY Slip Op 08473 [112 AD3d 1150] |
| December 19, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vJoshua L. Wolz, Appellant. |
—[*1] Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.
Spain, J. Appeals from a judgment of the County Court of Franklin County (Main Jr.,J.), rendered February 6, 2012, (1) upon a verdict convicting defendant of the crime ofcriminal sale of a controlled substance in the third degree and (2) convicting defendantupon his plea of guilty of the crime of burglary in the third degree.
After a jury trial, defendant was convicted as charged of criminal sale of a controlledsubstance in the third degree for selling oxycodone, a narcotic drug, to a confidentialinformant during a controlled buy overseen by law enforcement officers. At sentencing,defendant accepted a plea agreement pursuant to which he entered a guilty plea toburglary in the third degree in satisfaction of an unrelated eight-count indictment,admitted for all purposes that he was a second felony offender, and waived his right toappeal the conviction and sentence in both cases. The plea also satisfied anotherfour-count indictment that was scheduled for trial charging him with evidence tamperingand other crimes. In exchange, defendant was promised a sentence of 3½ to 7 yearsin prison for the criminal sale conviction and no more than 10 years for the burglaryconviction, with three years of postrelease supervision. Defendant was thereaftersentenced as a second felony offender to the agreed-upon sentence on the criminal saleconviction, and to a concurrent term of 10 years in prison and three years of postreleasesupervision on the burglary conviction. Defendant now appeals.[*2]
Initially, upon review of the record, we find that,contrary to defendant's contentions, his guilty plea and appeal waivers were knowingly,voluntarily and intelligently entered (see People v Brown, 14 NY3d 113, 116 [2010]; People v Lopez, 6 NY3d248, 256 [2006]; People vMorales, 68 AD3d 1356, 1356-1357 [2009], lv denied 14 NY3d 803[2010] [waived appeal as to both a jury verdict and an unrelated plea as part of onenegotiated deal]; People vCipriani, 61 AD3d 1214, 1215 [2009], lv denied 13 NY3d 795 [2009][same]). County Court outlined all of the terms of the plea agreement on the record,explained the consequences of the guilty plea and the trial-related rights that defendantwas forgoing, and elicited his understanding of each of the terms. When a question aroseas to whether the appeal waiver would apply to both the criminal sale and the burglaryconvictions, the court took a recess and conferred with the parties, following which thecourt placed on the record the parties' understanding that defendant would be waiving hisright to appeal all aspects of both convictions with two specified qualifications (seePeople v Morales, 68 AD3d at 1357). Defendant then admitted the acts constitutingburglary in the third degree and the court engaged in an extended colloquy beforeaccepting his guilty plea to the burglary count. During that allocution, the court explainedthe appeal waiver, advising that a defendant may "ordinarily appeal any decision, [o]rder,or ruling of the court which he [or she] believes to be legally incorrect or otherwiseinappropriate" but that, as a separate part of his plea agreement, defendant would berequired, as agreed, to waive his right to appeal "all aspects of the proceeding except anyof a constitutional nature and . . . any violat[ion] by the court of itssentencing commitment;"[FN*] defendant expressly agreed to the appeal waiver as to the burglary conviction. The courtthen separately elicited defendant's agreement to the identical qualified appeal waiver asto the criminal sale conviction, after ascertaining that he had discussed the waiver withcounsel, who was satisfied that defendant understood it. Thus, contrary to defendant'sappellate claims, the court carefully explained the appeal waiver and distinguished itfrom the other rights that defendant was forgoing as a consequence of his guilty plea,established that defense counsel had discussed it with him, engaged defendant in separateappeal waiver colloquies as to each conviction, and did not mislead him as to the pleaterms or scope of the appeal waiver (see People v Lopez, 6 NY3d at 256-257; People v Morey, 110 AD3d1378, 1378-1379 [2013]).
Given that County Court "ma[de] certain that . . . defendant'sunderstanding of the terms and conditions of [the] plea agreement [were] evident on theface of the record," which reflects "that [the appeal waivers were] made knowingly,intelligently and voluntarily," they will be given full effect (People v Lopez, 6NY3d at 256; see People v Calvi, 89 NY2d 868, 871 [1996]; People vCallahan, 80 NY2d 273, 280 [1992]). As a consequence of "pleading guilty andwaiving the right to appeal, . . . defendant has forgone review of the termsof the plea, including the harshness or excessiveness of the sentence" (People vLopez, 6 NY3d at 256). Likewise, defendant's nonconstitutional challenges to thecourt's Molineux ruling are encompassed within and precluded by his appealwaiver (see People vBarrier, 7 AD3d 885, 886 [2004], lv denied 3 [*3]NY3d 670 [2004]; see also People v Morales, 68AD3d at 1357), as is his contention regarding the court's admission into evidence of thetape recording and transcript of the drug sale (see People v Mercer, 81 AD3d 1159, 1160 [2011], lvdenied 19 NY3d 999 [2012]).
Defendant's argument that his right to confront witnesses against him at trial underthe 6th Amendment was violated is a constitutional claim that he reserved in his qualifiedappeal waiver, but we find that it has no merit. Defendant contends that County Courterred when it admitted into evidence the controlled substance report documenting thatthe substance in issue was oxycodone, where Clifford Brant, the State Police forensicscientist who performed the chemical analysis and prepared the report, testified at trial,but his supervisor, Margaret Lafond—who cosigned the report—did nottestify. The Confrontation Clause of the 6th Amendment to the US Constitutionguarantees a defendant in a criminal prosecution the right to be "confronted withwitnesses against him [or her]" (US Const 6th Amend), which precludes the "admissionof testimonial statements of a witness who did not appear at trial unless he [or she] wasunavailable to testify, and the defendant . . . had a prior opportunity forcross-examination" (Crawford v Washington, 541 US 36, 53-54 [2004]). The USSupreme Court held in Melendez-Diaz v Massachusetts (557 US 305 [2009])that a sworn report from a state laboratory identifying a substance for purposes of acriminal prosecution is testimonial, and that the analysts were witnesses for purposes ofthe 6th Amendment who the accused was entitled to confront (id. at 310-311).The Court further held that, absent proof that such analysts were unavailable and that theaccused had a prior opportunity to cross-examine them, his right of confrontation wasviolated (id.; see Bullcoming v New Mexico, 564 US —,—, 131 S Ct 2705, 2716-2717 [2011]; People v Pealer, 20 NY3d 447, 453-454 [2013], certdenied 571 US —, 134 S Ct 105 [2013]; People v Brown, 13 NY3d 332, 338-339 [2009]).
Here, unlike Melendez-Diaz and Bullcoming, Brant—theanalyst who identified the oxycodone, performed the chemical tests on it, determined thenature of the substance, and authored the report—in fact testified and was subjectto cross-examination (seePeople v Raucci, 109 AD3d 109, 121-122 [2013]; compare People v Morrison,90 AD3d 1554, 1556-1557 [4th Dept 2011], lv denied 19 NY3d 1028[2012], reconsideration denied 20 NY3d 934 [2012] [the analyst who performedthe forensic tests and drew conclusions was not called to testify but, rather, the analyst'ssupervisor testified, who did not perform her own independent review or analysis]). Thereport is certified pursuant to CPL 190.30 (2) with the following language: "I, Clifford E.Brant, . . . hereby certify" and then states that it is "my [i.e. Brant's] reportand contains the opinions and interpretations of the examination I performed inthe above referenced case" (emphasis added). Brant also testified that Lafond cosignedthe report after an administrative review of it, as required by State Police protocol. Thereis no support in the record for the proposition that Lafond examined or analyzed thesubstance, observed Brant doing so, or was signing the report in that capacity. Indeed,Brant testified that after he alone performed the forensic chemical testing, he sealed,signed and dated the laboratory bag containing the pill, which remained intact as of thetrial, supporting the conclusion that Lafond only read and signed the report after it wascompleted to ensure that proper procedure was followed (see e.g. People vMorrison, 90 AD3d at 1556-1557), and she had no role in ascertaining or verifyingthe identity of the substance in issue. Thus, the "actual analyst who performed the tests"(id. at 1557) and "wr[o]te [the] report[ ]" (Bullcoming v New Mexico,564 US at, 131 S Ct at 2715) testified. We find that Lafond, who neither analyzed thesubstance in issue nor authored the report, was not a "witness" against defendant forpurposes of the Confrontation Clause (cf. Melendez-Diaz v Massachusetts, 557US at 311) and, accordingly, no Crawford violation occurred as a result of thePeople admitting Brant's report into evidence without calling Lafond to testify.[*4]
Defendant's remaining claims also lack merit.
Stein, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Ordinarily, issues thatsurvive an appeal waiver include a challenge to the legality of the sentence (seePeople v Callahan, 80 NY2d 273, 280 [1992]) or any issue that "involve[s] a right ofconstitutional dimension going to 'the very heart of the process' " (People vLopez, 6 NY3d at 255, quoting People v Hansen, 95 NY2d 227, 230[2000]). Here, defendant expressly reserved all issues of a "constitutional nature" fromthis appeal waiver.