| People v Berrian |
| 2017 NY Slip Op 07170 [154 AD3d 486] |
| October 12, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Lenard Berrian, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Benjamin Wiener of counsel),for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Alexander Michaels of counsel), forrespondent.
Judgment, Supreme Court, New York County (Laura A. Ward, J. at plea, sentencing andresentencing; Eduardo Padró, J. at diversion proceedings), rendered December 28, 2015, asamended May 31, 2016, convicting defendant of criminal possession of a controlled substance inthe third degree, and sentencing him, as a second felony drug offender, to a term of three years,unanimously affirmed.
Defendant's challenges to the voluntariness of his plea are waived because he declined theresentencing court's offer of an opportunity to withdraw the plea, and we reject defendant'sarguments to the contrary. In any event, since defendant did not raise the specific claims he raiseson appeal during his initial plea withdrawal motion or at any other juncture, those claims areunpreserved (see People vConceicao, 26 NY3d 375, 381-382 [2015]), and we decline to review them in theinterest of justice. As an alternative holding, we find that the record as a whole demonstrates thatdefendant's plea was knowing, intelligent, and voluntary. "The plea court explained to defendantthat diversion [under CPL 216.05] was not guaranteed, it made no representations about thelikelihood of defendant's acceptance for diversion, and it specified the sentence defendant wouldreceive in the event of his rejection" (People v Brown, 127 AD3d 498, 498 [1st Dept 2015], affd28 NY3d 982 [2016]).
As to defendant's requests to proceed pro se, defendant acquiesced to continuedrepresentation by counsel at subsequent proceedings (see People v Brunner, 151 AD3d 651 [1st Dept 2017]; People v Little, 151 AD3d 531 [1stDept 2017]). Moreover, defendant's requests were made in the context of also requesting a newlawyer (see People v LaValle, 3NY3d 88, 105-107 [2004]). Accordingly, under the circumstances here, the court did notcommit reversible error.
Defendant made a valid waiver of his right to appeal (see People v Bryant, 28 NY3d 1094 [2016]), which foreclosesreview of his remaining arguments. Regardless of whether defendant validly waived his right toappeal, we find his remaining arguments unavailing. Concur—Friedman, J.P., Richter,Moskowitz and Gesmer, JJ.