| People v Seymore |
| 2020 NY Slip Op 06924 [188 AD3d 1767] |
| November 20, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Clifton Seymore, Appellant. |
Keliann M. Argy, Orchard Park, for defendant-appellant.
Appeal from a judgment of the Wyoming County Court (Michael M. Mohun, J.), renderedOctober 10, 2018. The judgment convicted defendant upon a plea of guilty of assault in thesecond 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 ofassault in the second degree (Penal Law § 120.05 [7]), arising from an altercationdefendant had with another inmate while confined in a correctional facility on a prior conviction.We note at the outset that defendant does not challenge the validity of his waiver of the right toappeal (see People vRosado-Thomas, 181 AD3d 1166, 1166 [4th Dept 2020], lv denied 35 NY3d1048 [2020]). Defendant contends that his plea was not knowingly, intelligently, and voluntarilyentered. Although that contention survives the unchallenged appeal waiver (see People v Thomas, 34 NY3d545, 558 [2019], cert denied 589 US &mdash, 140 S Ct 2634 [2020]; People vSeaberg, 74 NY2d 1, 10 [1989]), defendant failed to preserve his contention for our reviewbecause he did not move to withdraw the plea or to vacate the judgment of conviction (seePeople v Lopez, 71 NY2d 662, 665 [1988]), and we conclude that this case does not fallwithin the narrow exception to the preservation requirement (see id. at 666). In any event,the record demonstrates that defendant knowingly, voluntarily, and intelligently entered the guiltyplea (see People v Seeber, 4 NY3d780, 781-782 [2005]).
Defendant's challenge to the sufficiency of the factual allegations in the indictment does notsurvive the guilty plea or the appeal waiver (see People v Guerrero, 28 NY3d 110, 116 [2016]; People v Oswold, 151 AD3d 1756,1757 [4th Dept 2017], lv denied 29 NY3d 1131 [2017]; People v Briggs, 147 AD3d 1077,1077 [2d Dept 2017], lv denied 29 NY3d 1076 [2017]). Contrary to defendant's furtherassertion, the record establishes that defendant did not request a bill of particulars from thePeople pursuant to the requirements of CPL 200.95. Even assuming, arguendo, that such arequest was made, any contention by defendant that he was denied due process of law by thePeople's failure to comply with a demand for a bill of particulars would be precluded by theappeal waiver (see People vVanvleet, 126 AD3d 1359, 1360 [4th Dept 2015], lv denied 26 NY3d 1012[2015]).
Defendant's contention that County Court erred in denying his request for substitution of hisfirst attorney during a proceeding prior to the plea is "encompassed by the plea and the waiver ofthe right to appeal except to the extent that the contention implicates the voluntariness of theplea" (People v Morris, 94 AD3d1450, 1451 [4th Dept 2012], lv denied 19 NY3d 976 [2012]; see People v Wellington, 169 AD3d1440, 1441 [4th Dept 2019], lv denied 33 NY3d 982 [2019]). As previously stated,however, defendant's challenge to the voluntariness of the plea is not preserved for our review(see People v Rolfe, 83 AD3d1219, 1220 [3d Dept 2011], lv denied 17 NY3d 809 [2011]). In any event, to theextent that defendant's contention implicates the voluntariness of the plea, it is without meritinasmuch as the record establishes that defendant was, in fact, represented by a second attorneyby the time of the plea proceeding, during which defendant expressed no concerns with thesecond attorney and instead confirmed that he was satisfied with that attorney's advice andrepresentation (see People vLewicki, 118 AD3d 1328, 1328-1329 [4th Dept 2014], lv denied 23 NY3d 1064[2014]).
Defendant contends that he was denied effective assistance of counsel, which rendered hisplea involuntary, based on the first attorney's alleged failures to request a bill of particulars,investigate witnesses, demand other items of discovery, and sufficiently communicate with him.Defendant's contention survives his guilty plea and appeal waiver "only insofar as hedemonstrates that the plea bargaining process was infected by [the] allegedly ineffectiveassistance or that defendant entered the plea because of [his] attorney['s] allegedly poorperformance" (People v Rausch, 126AD3d 1535, 1535 [4th Dept 2015], lv denied 26 NY3d 1149 [2016] [internalquotation marks omitted]; see People vMiller, 161 AD3d 1579, 1580 [4th Dept 2018], lv denied 31 NY3d 1119[2018]). To the extent that defendant's contention is reviewable on direct appeal, we concludethat it lacks merit inasmuch as he "received an advantageous plea, and 'nothing in the record castsdoubt on the apparent effectiveness of counsel' " (People v Shaw, 133 AD3d 1312, 1313 [4th Dept 2015], lvdenied 26 NY3d 1150 [2016], quoting People v Ford, 86 NY2d 397, 404 [1995]).Defendant's contention that the first attorney was ineffective based on his failure to request a billof particulars is without merit (seePeople v Granger, 96 AD3d 1669, 1670 [4th Dept 2012], lv denied 19 NY3d1102 [2012]; People v Moyer, 75AD3d 1004, 1007 [3d Dept 2010]; People v Neal, 56 AD3d 1211, 1211 [4th Dept 2008], lv denied12 NY3d 761 [2009]). Defendant's contention otherwise " 'involves matters outsidethe record on appeal and, thus, it must be raised by way of a motion pursuant to CPL article440' " (People v Spencer,170 AD3d 1614, 1615 [4th Dept 2019]; see People v Goodwin, 159 AD3d 1433, 1435 [4th Dept 2018]; People v Resto, 147 AD3d 1331,1334-1335 [4th Dept 2017], lv denied 29 NY3d 1000 [2017], denied reconsideration29 NY3d 1094 [2017]).
Defendant also contends that his third attorney, who appeared at sentencing on defendant'sbehalf after defendant waived his appearance, was ineffective because he had no knowledge ofthe case. We reject that contention. The record establishes that, although the third attorney hadonly recently taken over the case, he "was sufficiently familiar with the case and defendant'sbackground to provide meaningful representation at sentencing" and appropriately advocated fordefendant at sentencing (People vSaladeen, 12 AD3d 1179, 1180 [4th Dept 2004], lv denied 4 NY3d 767 [2005]).We conclude that, "given the nature of defendant's criminal record and the criminal conductherein, . . . no [further] statement made by [the third attorney] at sentencing 'wouldhave had an impact on the sentence imposed' " (id.).
Defendant's challenge to the severity of his sentence "is foreclosed by his unchallengedwaiver of the right to appeal" (Rosado-Thomas, 181 AD3d at 1167; see People v Putman, 163 AD3d1461, 1461 [4th Dept 2018]). Finally, we note that the plea proceeding and the sentencereflect defendant's status as a second violent felony offender (Penal Law § 70.04 [1][a], [b]), and the record thus confirms that the court merely misstated at sentencing that defendantwas a second felony offender rather than a second violent felony offender (see People v Camp, 134 AD3d1470, 1471 [4th Dept 2015], lv denied 27 NY3d 1066 [2016]; People v Feliciano, 108 AD3d880, 881 n 1 [3d Dept 2013], lv denied 22 NY3d 1040 [2013]). Inasmuch as thecertificate of conviction and uniform sentence and commitment form incorrectly reflect thatdefendant was sentenced as a second felony offender, they must be amended to reflect that hewas sentenced as a second violent felony offender (see People v Mobayed, 158 AD3d 1221, 1223 [4th Dept 2018],lv denied 31 NY3d 1015 [2018]; People v Carducci, 143 AD3d 1260, 1263 [4th Dept 2016], lvdenied 28 NY3d 1143 [2017]). Present—Smith, J.P., Peradotto, Curran, Bannister andDeJoseph, JJ.