| People v Dixon |
| 2020 NY Slip Op 03527 [184 AD3d 854] |
| June 24, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Joseph Dixon, Appellant. |
Paul Skip Laisure, New York, NY (Anna Kou of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Sholom J. Twersky, andSullivan & Cromwell, LLP [Christopher M. Weldon], of counsel), for respondent.
Appeals by the defendant from two judgments of the Supreme Court, Kings County (VincentM. Del Giudice, J.), both rendered April 19, 2017, convicting him of attempted assault in thesecond degree under indictment No. 9104/15, upon a jury verdict, and criminal possession of acontrolled substance in the third degree under indictment No. 6471/16, upon his plea of guilty,and imposing sentences.
Ordered that the judgments are affirmed.
With respect to the appeal from the judgment rendered under indictment No. 9104/15, thedefendant's contention that the prosecutor made improper remarks during summation isunpreserved for appellate review (see CPL 470.05 [2]; People v Romero, 7 NY3d 911,912 [2006]). In any event, certain of the prosecutor's remarks were improper, including thosewhich, among other things, denigrated the defendant and could have been intended to evoke thejury's sympathy (see People vCunningham, 171 AD3d 1207, 1208 [2019]; People v Bunting, 146 AD3d 794, 795 [2017]). Nevertheless, thedefendant was not deprived of a fair trial by the prosecutor's remarks, and any other error in thisregard was harmless, as there was overwhelming evidence of the defendant's guilt, and nosignificant probability that any error in this regard might have contributed to his conviction(see People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Cherry, 163 AD3d 706,707 [2018]).
Moreover, defense counsel's failure to object to certain improper comments made by theprosecutor on summation did not deprive the defendant of the effective assistance of counsel(see Strickland v Washington, 466 US 668 [1984]; People v Benevento, 91 NY2d708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]; People v Bunting,146 AD3d at 795).
Additionally, the sentence imposed upon the defendant's conviction of attempted assault inthe second degree was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
With respect to the appeal from the judgment rendered under indictment No. 6471/16, thedefendant's purported waiver of his right to appeal was invalid (see People v Thomas, 34 NY3d545 [2019]; People v Tellado,181 AD3d 830, 831 [2020]). When explaining the waiver of the right to appeal, the SupremeCourt stated to the defendant, "[s]o what this means is you're not going to have any help or anylawyer to help you effect an appeal on the conviction or any lawful sentence that I impose.Nobody is going to provide you with transcripts or any other help." These statements "utterly'mischaracterized the nature of the right a defendant was being asked to cede' "(People v Thomas, 34 NY3d at 565, quoting People v Lopez, 6 NY3d 248, 257 [2006]), and incorrectlysuggested that the waiver may be an absolute bar to the taking of an appeal (see People vThomas, 34 NY3d at 564; People v Tellado, 181 AD3d at 831). The written waiverform did not overcome the ambiguities in the court's explanation of the right to appeal as it didnot contain clarifying language that appellate review remained available for select issues (seePeople v Tellado, 181 AD3d at 831). Thus, the purported waiver does not preclude appellatereview of this excessive sentence claim.
However, the sentence imposed upon the defendant's conviction of criminal possession of acontrolled substance in the third degree was not excessive (see People v Suitte, 90 AD2d80 [1982]). Rivera, J.P., Roman, Hinds-Radix and Duffy, JJ., concur.