| People v Shabazz |
| 2019 NY Slip Op 05810 [174 AD3d 1223] |
| July 25, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Ismail Shabazz, Also Known as Garry Faulkner,Appellant. |
Jack H. Weiner, New York City, for appellant.
William V. Grady, District Attorney, Poughkeepsie (Kirsten A. Rappleyea of counsel), forrespondent.
Clark, J. Appeal from a judgment of the Supreme Court (McNally Jr., J.), rendered February1, 2017 in Ulster County, convicting defendant upon his plea of guilty of the crime of attemptedcriminal sale of a firearm in the second degree.
In 2015, defendant was charged in a 16-count indictment with variouscrimes—primarily pertaining to his unlawful possession and/or sale of firearms betweenMay 2014 and May 2015. Following defendant's successful motions to recuse County Court(Williams, J.) and disqualify the Ulster County District Attorney's office from prosecuting thismatter, defense counsel moved to, among other things, dismiss the indictment and soughtinspection of the grand jury minutes—contending that the People had in their possession acertain memorandum indicating that defendant held a federal firearms license. In opposition, thePeople indicated that their investigation of this allegation revealed that defendant did not possesseither a federal firearms license or a state pistol permit; although defendant had applied for apistol permit, such application "was never granted" and therefore, the People asserted,presentation of the subject memorandum to the grand jury was not required. Supreme Courtdenied defendant's respective applications.
In full satisfaction of the indictment, and following a detailed plea colloquy, defendantagreed to plead guilty to the reduced charge of attempted criminal sale of a firearm in the seconddegree in exchange for a prison term of two years followed by three years of postreleasesupervision. The plea agreement included a waiver of the right to appeal. After assuring SupremeCourt that he had been afforded sufficient time to confer with counsel and was satisfied withcounsel's services, defendant pleaded guilty to the reduced charge—specificallyacknowledging that he attempted to unlawfully sell or dispose of five firearms within a period ofnot more than one year—and the matter was adjourned for sentencing.
Prior to sentencing, defense counsel was relieved of representing defendant and, ultimately,the Ulster County Public Defender's office was assigned to represent defendant. Assignedcounsel then moved to withdraw defendant's plea—contending that, when he entered hisguilty plea, defendant was ill and under the influence of certain cough medication that may haveadversely interacted with his prescription drugs, resulting in confusion. When the partiesappeared for sentencing, defendant expressed dissatisfaction with assigned counsel; SupremeCourt denied defendant's apparent request for new counsel and granted defendant a briefadjournment in order to discuss and possibly expand upon the grounds for the pending motion.Upon returning to court, defendant indicated that he wished to proceed pro se and no longerwanted to pursue his motion to withdraw his plea. Supreme Court thereafter sentenced defendantto the agreed-upon prison term of two years followed by three years of postrelease supervision,and this appeal ensued.
We affirm. Defendant argues that his plea was involuntary and, further, that he receivedineffective assistance of counsel because plea counsel failed to procure certain documents thatpurportedly would have shown that defendant possessed a valid federal firearmslicense—an omission that defendant did not recall until after he had pleaded guilty. To theextent that these arguments may be resolved upon the record before us, they are unpreserved forour review, as defendant withdrew his motion to withdraw his plea at the time of sentencing; tothe extent that resolution of these issues is dependent upon matters outside of the record, suchissues are more properly considered in the context of a CPL article 440 motion (see People v Cantey, 161 AD3d1449, 1450-1451 [2018], lv denied 32 NY3d 935 [2018]; People v Smith, 155 AD3d 1244,1245 [2017]; People v Jones, 114AD3d 1080, 1081 [2014], lv denied 24 NY3d 961 [2014]; People v Carpenter, 93 AD3d 950,952 [2012], lv denied 19 NY3d 863 [2012]; People v Terenzi, 57 AD3d 1228, 1229 [2008], lv denied 12NY3d 822 [2009]). As the record does not reflect that defendant made any statements during theplea colloquy that negated an element of the crime to which he pleaded guilty or otherwise calledinto question the voluntariness of his plea, the narrow exception to the preservation requirementdoes not apply (see People v Cantey, 161 AD3d at 1450; People v Smith, 155AD3d at 1245).
Finally, although defendant argues that Supreme Court abused its discretion in denyingdefendant's motion to withdraw his plea, the record reflects that Supreme Court did not in factdeny such motion; rather, defendant—by indicating that he no longer wished to pursue themotion and insisting that the court proceed to sentencing (see People v Cantey, 161AD3d at 1450)—withdrew that motion. Accordingly, defendant has abandoned anyargument on this point (see People vLoper, 118 AD3d 1394, 1395 [2014], lv denied 25 NY3d 1204 [2015]).Defendant's remaining contentions, to the extent not specifically addressed, have been examinedand found to be lacking in merit.
Lynch, J.P., Mulvey, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.