| People v Hymes |
| 2018 NY Slip Op 02942 [160 AD3d 1386] |
| April 27, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Anacin L. Hymes, Appellant. (Appeal No. 1.) |
Catherine H. Josh, Rochester, for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.), renderedOctober 9, 2013. The judgment convicted defendant, upon a jury verdict, of burglary in the thirddegree (two counts), petit larceny, and resisting arrest.
It is hereby ordered that the case is held, the decision is reserved and the matter is remitted toSupreme Court, Monroe County, for further proceedings in accordance with the followingmemorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon a juryverdict of petit larceny (Penal Law § 155.25), resisting arrest(§ 205.30), and two counts of burglary in the third degree (§ 140.20).In appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of attemptedburglary in the second degree (§§ 110.00, 140.25 [2]).
Contrary to defendant's contention in appeal No. 1, viewed in the light most favorable to thePeople (see People v Contes, 60 NY2d 620, 621 [1983]), the evidence is legally sufficientto support the conviction with respect to the counts of burglary in the third degree and petitlarceny (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Viewing theevidence in light of the elements of those crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence withrespect thereto (see Bleakley, 69 NY2d at 495).
Defendant also challenges the sufficiency of the evidence with respect to the conviction ofresisting arrest. We note that Supreme Court denied defendant's motion for a trial order ofdismissal with respect to the charges of burglary in the third degree and petit larceny but reserveddecision with respect to the resisting arrest charge. The matter was submitted to the jury, whichreturned a verdict convicting defendant of all charges. The court never ruled on the remainder ofthe motion. Thus, we do not address defendant's contention with respect to the resisting arrestcharge because, "in accordance with People v Concepcion (17 NY3d 192, 197-198 [2011]) andPeople v LaFontaine (92 NY2d 470, 474 [1998], rearg denied 93 NY2d 849[1999]), 'we cannot deem the court's failure to rule on [that part of] the . . . motionas a denial thereof' " (People vWhite, 134 AD3d 1414, 1415 [4th Dept 2015]; see People v Spratley, 96 AD3d 1420, 1421 [4th Dept 2012]). Wetherefore hold the case in appeal No. 1, reserve decision, and remit the matter to Supreme Courtfor a ruling on the remainder of the motion.
We reject defendant's further contention in appeal No. 1 that the court erred in imposingconsecutive sentences with respect to the burglary in the third degree convictions (see People v Kirkland, 105 AD3d1337, 1339 [4th Dept 2013], lv denied 21 NY3d 1043 [2013]; see also PenalLaw § 70.25 [2]). We also reject defendant's contention that the sentence is undulyharsh and severe.
In appeal No. 2, defendant contends that his waiver of the right to appeal is invalid and doesnot preclude his challenge to the severity of his sentence. Contrary to defendant's contention, weconclude that the waiver of the right to appeal is valid inasmuch as "the record demonstrates thatit was made knowingly, intelligently and voluntarily" (People v Lopez, 6 NY3d 248, 256 [2006]), and that "defendantha[d] 'a full appreciation of the consequences' of such waiver" (People v Bradshaw, 18 NY3d 257,264 [2011]). Additionally, although the oral colloquy did not mention any challenge to theseverity of the sentence, defendant executed and acknowledged on the record a written waiver ofthe right to appeal, which specifically referenced the fact that he was waiving his right to appealthe "sentence." Based upon the combination of the oral colloquy and the written waiver, we thusconclude that the waiver of the right to appeal encompasses defendant's challenge to the severityof the sentence (see People vMorales, 148 AD3d 1638, 1639 [4th Dept 2017], lv denied 29 NY3d 1083[2017]).
We reject defendant's further contention in appeal No. 2 that the court erred in denying hisrequest for assignment of new counsel. Defendant failed to make specific factual allegations of"serious complaints about counsel" (People v Medina, 44 NY2d 199, 207 [1978]), andthus failed to trigger the court's obligation to make at least a "minimal inquiry" (People vSides, 75 NY2d 822, 825 [1990]), and "discern meritorious complaints from disingenuousapplications by inquiring as to 'the nature of the disagreement or its potential forresolution' " (People vPorto, 16 NY3d 93, 100 [2010]).
In light of our determination in appeal No. 1 to affirm the convictions for burglary in thethird degree and petit larceny, there is no basis to grant defendant's request to reverse thejudgment in appeal No. 2 and vacate his plea of guilty on the ground that his plea was contingentupon the judgment in appeal No. 1 (seegenerally People v Roosevelt, 125 AD3d 1452, 1455 [4th Dept 2015], lv denied25 NY3d 1076 [2015]). Present—Carni, J.P., Lindley, NeMoyer, Troutman andWinslow, JJ.