SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
860
KA 14-00396
PRESENT: WHALEN, P.J., SMITH, LINDLEY, TROUTMAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JERWAN B. MCFARLEY, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)
HUNT & BAKER, HAMMONDSPORT (BRENDA SMITH ASTON OF COUNSEL), FOR
DEFENDANT-APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL),
FOR RESPONDENT.
Appeal from a judgment of the Steuben County Court (Joseph W.
Latham, J.), rendered December 4, 2013. The judgment convicted
defendant, upon his plea of guilty, of attempted criminal possession
of a controlled substance in the third degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon a plea of guilty of attempted criminal possession
of a controlled substance in the third degree (Penal Law §§ 110.00,
220.16 [1]) and, in appeal No. 2, defendant appeals from a judgment
convicting him upon a plea of guilty of criminal possession of a
controlled substance in the fourth degree (§ 220.09 [1]). Contrary to
defendant’s contention in each appeal, his waivers of the right to
appeal were knowingly, voluntarily and intelligently entered. “Taking
into account ‘the nature and terms of the [plea] agreement and the
age, experience and background of [defendant]’ . . . , we conclude
that the record of the plea colloquy [and the written waivers of the
right to appeal] ‘establish[ ] that the defendant understood that the
right to appeal is separate and distinct from those rights
automatically forfeited upon a plea of guilty’ ” (People v Rios, 93
AD3d 1349, 1349, lv denied 19 NY3d 966; see generally People v Lopez,
6 NY3d 248, 256). Moreover, “[n]o particular litany is required for
an effective waiver of the right to appeal” (People v Burley, 136 AD3d
1404, 1404, lv denied 27 NY3d 993 [internal quotation marks omitted];
see People v Durodoye, 113 AD3d 1130, 1131), and we conclude that
County Court fulfilled its obligation to “make certain that . . .
defendant’s understanding of the terms and conditions of [the] plea
agreement [was] evident on the face of the record” (Lopez, 6 NY3d at
256).
-2- 860
KA 14-00396
Even assuming, arguendo, that defendant’s contention that he was
denied effective assistance of counsel at sentencing survives
defendant’s guilty pleas (see People v Gregg, 107 AD3d 1451, 1452) and
the valid waivers of the right to appeal (see People v Rossetti, 55
AD3d 637, 638; see also People v Nicholson, 50 AD3d 1397, 1398-1399,
lv denied 11 NY3d 834), we conclude that defendant’s challenges to
counsel’s conduct at sentencing do not warrant reversal or
modification of the judgments of conviction. Defendant contends that
defense counsel coerced him into withdrawing his motion to withdraw
the pleas, but that contention involves matters outside the record on
appeal and must be raised by way of a motion pursuant to CPL 440.10
(see e.g. People v Williams, 124 AD3d 1285, 1286, lv denied 25 NY3d
1078; People v Griffin, 48 AD3d 1233, 1236, lv denied 10 NY3d 840).
Defendant further contends that defense counsel failed to investigate
a new criminal charge against defendant, which was being used as a
basis to modify the terms of the agreed-upon sentence. That
contention is also based on matters outside the record and must be
raised by way of a motion pursuant to CPL article 440 (see e.g.
Williams, 124 AD3d at 1286; Griffin, 48 AD3d at 1236). With respect
to defense counsel’s failure to request an Outley hearing concerning
the validity of the new charge, we conclude that such a failure did
not deprive defendant of meaningful representation because “[t]he
record establishes that defendant ‘receive[d] an advantageous plea and
nothing in the record casts doubt on the apparent effectiveness of
counsel’ ” (People v Coker, 133 AD3d 1218, 1218-1219, lv denied 27
NY3d 995, quoting People v Ford, 86 NY2d 397, 404; see People v Davis,
302 AD2d 973, 974, lv denied 100 NY2d 537).
Finally, while we do not condone defense counsel’s statements
that he would not listen to defendant and that defendant should engage
another attorney if he was unhappy, we cannot conclude that those
statements deprived defendant of meaningful representation under the
circumstances of this case (see generally Ford, 86 NY2d at 404; People
v Baldi, 54 NY2d 137, 147).
Entered: November 10, 2016 Frances E. Cafarell
Clerk of the Court