| People v Dix |
| 2019 NY Slip Op 01974 [170 AD3d 1575] |
| March 15, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Algernon Dix, Appellant. |
David J. Farrugia, Public Defender, Lockport (Theresa L. Prezioso of counsel), fordefendant-appellant.
Algernon Dix, defendant-appellant pro se.
Caroline A. Wojtaszek, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Matthew J. Murphy, III, J.), renderedMarch 10, 2016. The judgment convicted defendant, upon his plea of guilty, of manslaughter inthe first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofmanslaughter in the first degree (Penal Law § 125.20 [1]) arising from a shooting ata nightclub. Preliminarily, we deny the request of defendant in his pro se supplemental brief tohold the appeal inasmuch as "[i]t is not the practice of this Court to hold appeals from a judgmentof conviction awaiting the outcome of a CPL article 440 motion" (People v Toporczyk,175 AD2d 678, 678 [4th Dept 1991]).
Addressing the contentions in defendant's main brief, we first conclude that defendant'swaiver of the right to appeal was voluntarily, knowingly and intelligently entered (see People v Lopez, 6 NY3d 248,256 [2006]). County Court "made clear that the waiver of the right to appeal was a condition of[the] plea, not a consequence thereof, and the record reflects that defendant understood that thewaiver of the right to appeal was 'separate and distinct from those rights automatically forfeitedupon a plea of guilty' " (People vGraham, 77 AD3d 1439, 1439 [4th Dept 2010], lv denied 15 NY3d 920 [2010],quoting Lopez, 6 NY3d at 256; see People v Alfiere, 156 AD3d 1446, 1446 [4th Dept 2017], lvdenied 31 NY3d 980 [2018]; Peoplev Rogers, 81 AD3d 1320, 1320 [4th Dept 2011], lv denied 16 NY3d 862[2011]). Although defendant correctly notes that the court did not specifically inquire during theplea colloquy whether he had been threatened, we conclude that "[t]here is no support in therecord for defendant's contention that his appeal waiver was the result of coercion. . . , particularly considering the court's thorough colloquy and defendant'saffirmative statements that he had discussed the waiver with [defense] counsel and that he agreedto it" (People v Hayes, 71 AD3d1187, 1188 [3d Dept 2010], lv denied 15 NY3d 852 [2010], deniedreconsideration 15 NY3d 921 [2010], citing People v Holman, 89 NY2d 876, 878[1996]; see People v Smith, 138AD3d 1415, 1416 [4th Dept 2016]).
Defendant also contends that the photo array used in an identification procedure with awitness was unduly suggestive and therefore the court should have suppressed the witness'sidentification of him as the shooter. The valid waiver of the right to appeal forecloses our reviewof that contention (see People vSanders, 25 NY3d 337, 342 [2015]; People v Kemp, 94 NY2d 831, 833 [1999];People v Gessner, 155 AD3d1668, 1669 [4th Dept 2017]). Moreover, defendant forfeited the right to raise thatsuppression issue on appeal inasmuch as he pleaded guilty before the court issued a rulingthereon (see People v Fernandez, 67 NY2d 686, 688 [1986]; People v Rodgers, 162 AD3d1500, 1501 [4th Dept 2018], lv denied 32 NY3d 940 [2018]; People v Woody, 160 AD3d 1362,1362-1363 [4th Dept 2018], lv denied 31 NY3d 1154 [2018]).
Although defendant's further contention that his guilty plea was not knowing, voluntary, andintelligent survives the valid waiver of the right to appeal and is preserved for our review by hismotion to withdraw the plea (see Peoplev Dames, 122 AD3d 1336, 1336 [4th Dept 2014], lv denied 25 NY3d 1162[2015]), we reject that contention for the reasons that follow.
First, defendant contends that the People violated their obligation to timely discloseRosario material and, therefore, he was entitled to withdraw his plea. That contentionlacks merit. Such material need not be disclosed until "[a]fter the jury has been sworn and beforethe prosecutor's opening address" (CPL 240.45 [1]; see People v Pepe, 259 AD2d 949,950 [4th Dept 1999], lv denied 93 NY2d 1024 [1999]). Here, the People did not violatetheir obligation inasmuch as defendant pleaded guilty before the People were required to discloseRosario material and therefore defendant was not entitled to withdraw his plea on thatground (see generally People v Morrow, 129 AD2d 863, 864 [3d Dept 1987], lvdenied 70 NY2d 651 [1987]). In addition, defendant was not entitled to withdraw his plea onthe ground that the People did not disclose their witnesses inasmuch as " '[t]here isneither a constitutional nor statutory obligation mandating the pretrial disclosure of the identityof . . . prosecution witness[es]' " (People v Nesmith, 144 AD3d 1508, 1509 [4th Dept 2016], lvdenied 28 NY3d 1187 [2017]; seePeople v Stacchini, 108 AD3d 866, 867 [3d Dept 2013]). Defendant's further contentionthat he was entitled to withdraw his plea because the People did not disclose other informationalso lacks merit. "There is no claim by defendant, or any indication in the record, that the Peoplefailed to disclose any exculpatory information in their possession" (People v Montgomery, 22 AD3d379, 379-380 [1st Dept 2005], lv denied 6 NY3d 778 [2006]; see generally People v Fisher, 28 NY3d717, 722 [2017]).
Contrary to defendant's additional contention with respect to the voluntariness of his plea, thefact that the court did not specifically inquire during the plea colloquy whether he had beenthreatened does not render his plea involuntary. "[W]hile it would have been better for [the c]ourtto inquire as to whether any threats or promises had been made to induce [defendant] to pleadguilty, . . . defendant ma[de] no showing of prejudice by alleging that any suchthreats or promises actually occurred" (People v Demontigny, 60 AD3d 1152, 1152 [3d Dept 2009], lvdenied 12 NY3d 914 [2009]). Moreover, "defendant's fear that a harsher sentence would beimposed if [he] were convicted after trial does not constitute coercion" (People v Griffin, 120 AD3d 1569,1570 [4th Dept 2014], lv denied 24 NY3d 1084 [2014] [internal quotation marksomitted]). Similarly, "the fact that defendant was required to accept or reject the plea offer withina short time period does not amount to coercion" (People v Carr, 147 AD3d 1506, 1507 [4th Dept 2017], lvdenied 29 NY3d 1030 [2017] [internal quotation marks omitted]; see People v Pitcher, 126 AD3d1471, 1472 [4th Dept 2015], lv denied 25 NY3d 1169 [2015]). To the extent thatdefendant contends that he was not afforded sufficient time to discuss the plea with defensecounsel, that contention is belied by the record (see People v Goodwin, 159 AD3d 1433, 1434 [4th Dept 2018]).Furthermore, we conclude on this record that "the court did not coerce defendant into pleadingguilty merely . . . by commenting on the strength of the People's evidence againsthim" (Pitcher, 126 AD3d at 1472; see People v Hall, 82 AD3d 1619, 1620 [4th Dept 2011], lvdenied 16 NY3d 895 [2011]). Contrary to defendant's further contention, his conclusory andunsubstantiated claims of innocence and coercion made during the sentencing proceeding are notsupported by the record (see Dames, 122 AD3d at 1336; People v Adams, 45 AD3d 1346,1346 [4th Dept 2007]; People vDozier, 12 AD3d 1176, 1177 [4th Dept 2004]).
Finally, defendant's valid waiver of the right to appeal encompasses his challenge to theseverity of the sentence (see Lopez, 6 NY3d at 255-256; Alfiere, 156 AD3d at1446). Present—Whalen, P.J., Peradotto, NeMoyer, Curran and Troutman, JJ.