| People v Leasure |
| 2019 NY Slip Op 08217 [177 AD3d 770] |
| November 13, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Edward R. Leasure, Appellant. |
Paul Skip Laisure, New York, NY (Michael Arthus of counsel), for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Nancy Fitzpatrick Talcott, and Antara D. Kanth of counsel), forrespondent.
Appeals by the defendant from two judgments of the Supreme Court, Queens County(Barry A. Schwartz, J.), both rendered March 9, 2017, convicting him of burglary in thefirst degree (two counts) under indictment No. 987/15, and conspiracy in the seconddegree under indictment No. 1415/16, upon his pleas of guilty, and imposingsentences.
Ordered that the judgments are affirmed.
During the morning of March 16, 2015, the defendant allegedly entered two separatehouses while displaying what appeared to be a firearm to the residents of thosedwellings. He was arrested later the same day and subsequently charged in an eight-countindictment, inter alia, with two counts of burglary in the first degree. While detained injail awaiting trial, the defendant was charged in a second indictment, inter alia, withconspiracy in the second degree based on his alleged attempt to hire a hit man to killwitnesses to the crimes with which he was charged in the first indictment. On August 22,2016, the defendant pleaded guilty to two counts of burglary in the first degree and onecount of conspiracy in the second degree in exchange for sentences of concurrent termsof imprisonment not to exceed 24 years. On March 9, 2017, the defendant was sentencedto two concurrent determinate terms of imprisonment of 24 years followed by 5 years ofpostrelease supervision on the convictions of burglary in the first degree, and anindeterminate term of imprisonment of 12 to 24 years on the conviction of conspiracy inthe second degree, to run concurrently with the sentences imposed on the convictions ofburglary in the first degree. On the same date, the Supreme Court denied the defendant'spro se motion to withdraw his pleas of guilty on the ground that they were involuntarilyentered due to his having been under the influence of psychotropic medications.
Contrary to the defendant's contention, his waiver of the right to appeal was valid (see People v Sanders, 25 NY3d337 [2015]). " 'A waiver of the right to appeal is effective only so long asthe record demonstrates that it was made knowingly, intelligently andvoluntarily' " (People vBatista, 167 AD3d 69, 73 [2018], quoting People v Lopez, 6 NY3d 248, 256 [2006]). Here, the recorddemonstrates that the Supreme Court's colloquy with the defendant, supplemented by awritten waiver of the right to appeal on each indictment executed by the defendant,"sufficiently apprised him of the nature and significance of the right that he was beingasked to waive, and that the defendant had a full appreciation of the consequences of thewaiver of that right" (People vCuellar, 174 AD3d 733, 734 [2019]).
Although the defendant validly waived his right to appeal (see People vSanders, 25 NY3d at 341-342; People v Lopez, 6 NY3d at 255), hiscontention that his pleas were not knowing, voluntary, and intelligent survives the validappeal waiver (see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Rodriguez-Abreu,170 AD3d 895 [2019]). However, the defendant's contention that his pleas of guiltywere not entered voluntarily because the Supreme Court did not accurately advise him ofhis maximum potential sentencing exposure is unpreserved for appellate review, as hedid not move to withdraw his pleas on this ground prior to the imposition of sentence (see People v Odom, 164 AD3d1475 [2018]; People vMcKinney, 162 AD3d 1073 [2018]). In any event, this contention is withoutmerit. The defendant was clearly advised of his maximum sentencing exposure were heto have been convicted after trial on every count, and if the court were to have imposedconsecutive sentences. Furthermore, any alleged failure to inform the defendant of thestatutory sentence calculations contained in Penal Law § 70.30 did notrender the pleas involuntary (seePeople ex rel. Ryan v Cheverko, 22 NY3d 132, 136 [2013]).
The defendant's further contention that his pleas were not knowing, voluntary, orintelligent because the Supreme Court failed to inquire whether he voluntarily waived apsychiatric defense is unpreserved for appellate review, as he did not move to withdrawhis pleas on this ground (see CPL 470.05). In any event, this contention iswithout merit. There was nothing in the plea allocution that triggered the court's duty toinquire into a potential affirmative defense to the charges based upon mental disease ordefect (see Penal Law § 40.15; People v Colemanorange, 151 AD3d 738 [2017]).Moreover, the fact that the defendant may have been diagnosed with a mental illness as achild and, as an adult, was diagnosed with and is being treated for a depressive disorder,did not trigger a duty of inquiry (see People v Gelikkaya, 84 NY2d 456, 459[1994]; People v Colemanorange, 151 AD3d at 739). In addition, the record doesnot support the defendant's contention that he lacked the capacity to understand theproceedings against him or that he was unable to assist in his defense (see CPL730.30 [1]). To the contrary, he actively engaged in the plea negotiations, and hisresponses at the plea and sentencing proceedings were appropriate and did not indicatethat he was incapacitated (seePeople v Socci, 160 AD3d 904 [2018]; People v Colemanorange, 151AD3d at 739).
The defendant's valid waiver of his right to appeal precludes appellate review of hiscontention that he was deprived of the effective assistance of counsel, except to theextent that the alleged ineffective assistance affected the voluntariness of his pleas (see People v Hendrix, 172AD3d 1224 [2019]). To the extent that the defendant's ineffective assistance ofcounsel claim survives his valid waiver of the right to appeal, the claim is without merit(see People v Rodriguez,144 AD3d 950 [2016]).
The defendant's valid waiver of his right to appeal precludes appellate review of hiscontention that the sentences imposed were excessive (see People v Lopez, 6NY3d at 255-256; People v Batista, 167 AD3d at 75). Dillon, J.P., Duffy, Barrosand Brathwaite Nelson, JJ., concur.