People v. AlsaifullahPeople v. Alsaifullah
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him, upon his Alford plea entered during deliberations following a jury trial, of promoting prison contraband in the first degree (
Addressing first defendant‘s contentions in his main brief with respect to the judgment in appeal No. 1, we conclude that he “knowingly, intelligently, and voluntarily waived his right to appeal as a condition of the plea” (People v Bizardi, 130 AD3d 1492, 1492 [4th Dept 2015], lv denied 27 NY3d 992 [2016]; see generally People v Sanders, 25 NY3d 337, 340-342 [2015]). Contrary to defendant‘s contention, County Court “engage[d] [him] in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice . . . , and the record establishes that defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” (Bizardi, 130 AD3d at 1492 [internal quotation marks omitted]; see Sanders, 25 NY3d at 341). Contrary to defendant‘s further contentions, we conclude that “the waiver of the right to appeal was not rendered invalid based on the court‘s failure to require defendant to articulate the waiver in his own words” (People v Dozier, 59 AD3d 987, 987 [4th Dept 2009], lv denied 12 NY3d 815 [2009]), the court‘s failure “to specify during the colloquy which specific claims survive the waiver’ ” (Bizardi, 130 AD3d at 1492), or the fact that the waiver “was not reduced to writing” (People v Bryan, 78 AD3d 1692, 1692 [4th Dept 2010], lv denied 16 NY3d 829 [2011]; see People v Nicholson, 6 NY3d 248, 257 [2006]).
Defendant contends that the court erred in denying his motion to dismiss the indictment on the ground that he was shackled and handcuffed while appearing before the grand jury. Even assuming, arguendo, that defendant‘s contention survives the valid waiver of the right to appeal (see People v Lopez, 6 NY3d 248, 255 [2006]; People v Gilmore, 12 AD3d 1155, 1155-1156 [4th Dept 2004]; People v Robertson, 279 AD2d 711, 712 [3d Dept 2001], lv denied 96 NY2d 805 [2001]), we conclude that it lacks merit. “Although a criminal defendant may not be physically restrained in the presence of a [grand] jury unless there is a rational basis, articulated
Defendant‘s further contention that his plea was “not voluntarily entered because [he] provided only monosyllabic responses to [the court‘s] questions is actually a challenge to the factual sufficiency of the plea allocution” (People v Hendrix, 62 AD3d 1261, 1262 [4th Dept 2009], lv denied 12 NY3d 925 [2009]), which is encompassed by the valid waiver of the right to appeal (see People v Smith, 26 AD3d 746, 747 [4th Dept 2006], lv denied 7 NY3d 763 [2006]; People v Biaselli, 12 AD3d 1133, 1133 [4th Dept 2004]). Defendant‘s related contention that the court erred in accepting his Alford plea because the record lacked the requisite strong evidence of actual guilt to support his plea “survives his waiver of the right to appeal to the extent that it implicates the voluntariness of the plea” (People v Elliott, 107 AD3d 1466, 1466 [4th Dept 2013], lv denied 22 NY3d 996 [2013]). “By failing to move to withdraw the plea or vacate the judgment of conviction on the ground that the record lacked the requisite strong evidence of actual guilt,’ however, defendant failed to preserve his contention for our review . . . , and this case does not fall within the narrow exception to the preservation requirement” (id.; see People v Lopez, 71 NY2d 662, 666 [1988]). In any event, we conclude that “the record establishes that defendant‘s Alford plea was the product of a voluntary and rational choice, and the record . . . contains strong evidence of actual guilt” (Elliott, 107 AD3d at 1466 [internal quotation marks omitted]).
Defendant contends that he was denied effective assistance of counsel because, according to defendant, defense counsel did not properly challenge the jury panel (
The contentions in defendant‘s main and pro se supplemental briefs that he was denied due process based upon preindictment and other prosecutorial misconduct are forfeited as a result of his guilty plea (see People v Escalera, 121 AD3d 1519, 1520-1521 [4th Dept 2014], lv denied 24 NY3d 1083 [2014]; People v Anderson, 90 AD3d 1475, 1477 [4th Dept 2011], lv denied 18 NY3d 991 [2012]), and are encompassed by his waiver of the right to appeal (see People v Thomas, 56 AD3d 1240, 1240 [4th Dept 2008], lv denied 12 NY3d 763 [2009]).
We conclude that defendant‘s claim of actual innocence in his pro se supplemental brief is not properly before us on defendant‘s direct appeal following his Alford plea. “A claim of actual innocence must be based upon reliable evidence which was not presented at the [time of the plea]’ . . . , and thus must be raised by a motion pursuant to CPL article 440” (People v Brockway, 148 AD3d 1815, 1815 [4th Dept 2017]). Defendant failed to preserve his claim of actual innocence for our review inasmuch as he “failed to move to withdraw the plea, and his postjudgment motion pursuant to
In appeal No. 2, defendant contends in his main brief that the court erred in summarily denying his motion pursuant to
Contrary to defendant‘s contention in appeal No. 3 in his main brief, the court properly denied his
Entered: June 8, 2018
Mark W. Bennett
Clerk of the Court