| People v Johnson |
| 2021 NY Slip Op 03699 [195 AD3d 1420] |
| June 11, 2021 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Victor E. Johnson, Sr., Appellant. (Appeal No.1.) |
Robert M. Graff, Lockport, for defendant-appellant.
Victor E. Johnson, Sr., defendant-appellant pro se.
Brian D. Seaman, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Niagara County (Richard C. Kloch, Sr.,A.J.), rendered December 18, 2019. The judgment convicted defendant upon his plea of guilty ofattempted enterprise corruption.
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 ofattempted enterprise corruption (Penal Law §§ 110.00, 460.20 [1] [a]). Weaffirm.
Initially, to the extent that the purported waiver of the right to appeal is relevant to any of hiscontentions, we agree with defendant that he did not validly waive his right to appeal (see People v Thomas, 34 NY3d545, 565-566 [2019], cert denied 589 US &mdash, 140 S Ct 2634 [2020]; People v Mazaika, 191 AD3d1419, 1419 [4th Dept 2021]).
Addressing first defendant's contentions in his main brief, we reject defendant's assertion thatSupreme Court erred in refusing to entertain his pro se motions to withdraw his plea. "Because acriminal defendant is not entitled to hybrid representation, . . . the decision toentertain [pro se] motions [filed by a represented defendant] lies within the sound discretion ofthe trial court" (People v Rodriguez, 95 NY2d 497, 500 [2000]; see People v Alsaifullah, 96 AD3d1103, 1103 [3d Dept 2012], lv denied 19 NY3d 994 [2012]). Here, we conclude thatthe court did not abuse its discretion in refusing to entertain the pro se motions (seeRodriguez, 95 NY2d at 502-503; People v Fowler, 136 AD3d 1395, 1395 [4th Dept 2016], lvdenied 27 NY3d 996 [2016], denied reconsideration 27 NY3d 1132 [2016]).Contrary to defendant's related contention, we conclude that the court did not abuse its discretionin denying defense counsel's request for a further adjournment of sentencing to afford him anopportunity to review defendant's pro se motions (see People v Spears, 24 NY3d 1057, 1058-1060 [2014]; People v Shanley, 189 AD3d 2108,2108 [4th Dept 2020], lv denied 36 NY3d 1100 [2021]). Defendant's challenge to thevoluntariness of his plea is thus not preserved for our review (see People v Carroll, 172 AD3d 1821, 1822 [3d Dept 2019], lvdenied 34 NY3d 929 [2019]; Peoplev Horton, 166 AD3d 1226, 1227 [3d Dept 2018]), and we conclude that this case doesnot fall within the narrow exception to the preservation requirement (see People v Lopez,71 NY2d 662, 666 [1988]). We decline to exercise our power to review defendant's challenge asa matter of discretion in the interest of justice (see CPL 470.15 [3] [c]).
Furthermore, by pleading guilty, defendant forfeited his challenges to the court'sMolineux and Sandoval rulings (see People v Sapp, 147 AD3d 1532, 1534 [4th Dept 2017], lvdenied 29 NY3d 1086 [2017]).
[*2] Defendantcontends in his pro se supplemental brief that he was denied effective assistance of counsel,which rendered his plea involuntary, because defense counsel failed to properly investigate, didnot adequately seek discovery, provided inadequate advice during their conversations, and failedto move for a competency examination. Defendant's contention survives his guilty plea "onlyinsofar as he demonstrates that the plea bargaining process was infected by [the] allegedlyineffective assistance or that defendant entered the plea because of [his] attorney['s] allegedlypoor performance" (People vRausch, 126 AD3d 1535, 1535 [4th Dept 2015], lv denied 26 NY3d 1149 [2016][internal quotation marks omitted]; seePeople v Spencer, 170 AD3d 1614, 1615 [4th Dept 2019]). Here, defendant's contention"is based, in part, on matter appearing on the record and, in part, on matter outside the record,and, thus, constitutes a 'mixed claim of ineffective assistance' " (People v Tallegrand, 177 AD3d783, 784 [2d Dept 2019]; see Spencer, 170 AD3d at 1615). Where, as here, "the'claim of ineffective assistance of counsel cannot be resolved without reference to matter outsideof the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the [mixed]claim' " to the extent it survives the guilty plea (People v Wilson [appeal No. 2],162 AD3d 1591, 1592 [4th Dept 2018]; see generally People v Maffei, 35 NY3d 264, 269-270 [2020]).
Even assuming, arguendo, that defendant preserved for our review his further contention inhis pro se supplemental brief that the court erred in failing to recuse itself, we conclude that "therecord does not support his claim of bias on the part of the court and, thus, recusal was notrequired" (People v Barnes, 156AD3d 1417, 1419 [4th Dept 2017], lv denied 31 NY3d 1078 [2018]; seegenerally People v McCann, 85 NY2d 951, 952-953 [1995]; People v Moreno, 70NY2d 403, 405-406 [1987]). In addition, by pleading guilty before the court decided his pro semotion—which was adopted by defense counsel—to dismiss the indictment onstatutory and constitutional speedy trial grounds, defendant abandoned those claims and isforeclosed from pursuing the merits thereof on appeal (see People v Hardy, 173 AD3d 1649, 1649-1650 [4th Dept 2019],lv denied 34 NY3d 932 [2019]; see also People v Rodriguez, 50 NY2d 553, 558[1980]).
Finally, we have considered the remaining contentions in defendant's pro se supplementalbrief and conclude that they are either without merit or involve matters outside the record.Present—Centra, J.P., Peradotto, Troutman, Winslow and Bannister, JJ.