People v. SeymorePeople v. Seymore
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of assault in the second degree (
Defendant‘s challenge to the sufficiency of the factual allegations in the indictment does not survive 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 further assertion, the record establishes that defendant did not request a bill of particulars from the People pursuant to the requirements of
Defendant‘s contention that County Court erred in denying his request for substitution of his first attorney during a proceeding prior to the plea is “encompassed by the plea and the waiver of the right to appeal except to the extent that the contention implicates the voluntariness of the plea” (People v Morris, 94 AD3d 1450, 1451 (4th Dept 2012), lv denied 19 NY3d 976 [2012]; see People v Wellington, 169 AD3d 1440, 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 AD3d 1219, 1220 (3d Dept 2011), lv denied 17 NY3d 809 [2011]). In any event, to the extent that defendant‘s contention implicates the voluntariness of the plea, it is without merit inasmuch as the record establishes that defendant was, in fact, represented by a second attorney by the time of the plea proceeding, during which defendant expressed no concerns with the second attorney and instead confirmed that he was
Defendant contends that he was denied effective assistance of counsel, which rendered his plea 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 he demonstrates that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of [his] attorney[‘s] allegedly poor performance” (People v Rausch, 126 AD3d 1535, 1535 (4th Dept 2015), lv denied 26 NY3d 1149 [2016] [internal quotation marks omitted]; see People v Miller, 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 conclude that it lacks merit inasmuch as he “received an advantageous plea, and ‘nothing in the record casts doubt on the apparent effectiveness of counsel’ ” (People v Shaw, 133 AD3d 1312, 1313 (4th Dept 2015), lv denied 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 bill of particulars is without merit (see People v Granger, 96 AD3d 1669, 1670 (4th Dept 2012), lv denied 19 NY3d 1102 [2012]; People v Moyer, 75 AD3d 1004, 1007 (3d Dept 2010); People v Neal, 56 AD3d 1211, 1211 (4th Dept 2008), lv denied 12 NY3d 761 [2009]). Defendant‘s contention otherwise ” ‘involves matters outside the record on appeal and, thus, it must be raised by way of a motion pursuant to
Defendant also contends that his third attorney, who appeared at sentencing on defendant‘s behalf after defendant waived his appearance, was ineffective because he had no knowledge of the case. We reject that contention. The record establishes that, although the third attorney had only recently taken over the case, he “was sufficiently familiar with the case and defendant‘s background to provide meaningful representation at sentencing” and appropriately advocated for defendant at sentencing (People v Saladeen, 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 conduct herein, . . . no [further] statement made by [the third attorney] at sentencing ‘would have had an impact on the sentence imposed’ ” (id.).
Defendant‘s challenge to the severity of his sentence “is foreclosed by his unchallenged waiver of the right to appeal” (Rosado-Thomas, 181 AD3d at 1167; see People v Putman, 163 AD3d 1461, 1461 (4th Dept 2018)). Finally, we note that the plea proceeding and the sentence reflect defendant‘s status as a second violent felony offender (
Entered: November 20, 2020
Mark W. Bennett
Clerk of the Court