Summary
rejecting Reinard's facial constitutional challenge to Article 10 on direct appeal
Summary of this case from Reinard v. BellOpinion
1251 KA 14-00785.
12-23-2015
The PEOPLE of the State of New York, Respondent, v. Donald W. REINARD, Defendant–Appellant. (Appeal No. 1.).
David J. Farrugia, Public Defender, Lockport (Mary–Jean Bowman of Counsel), for Defendant–Appellant. Donald W. Reinard, Defendant–Appellant Pro Se. Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Respondent.
David J. Farrugia, Public Defender, Lockport (Mary–Jean Bowman of Counsel), for Defendant–Appellant.
Donald W. Reinard, Defendant–Appellant Pro Se.
Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Respondent.
Opinion
MEMORANDUM:
In appeal No. 1, defendant appeals from a judgment convicting him, upon his plea of guilty, of one count of course of sexual conduct against a child in the first degree (Penal Law § 130.751[a] ) and two counts of attempted sexual abuse in the first degree (§§ 110.00, 130.653). In appeal No. 2, defendant appeals from a judgment convicting him, upon his plea of guilty, of course of sexual conduct against a child in the first degree (§ 130.751[a] ).
In his main and pro se supplemental briefs, defendant contends in both appeals that his respective waivers of the right to appeal were not valid. We reject those contentions. County Court's plea colloquies, together with the written waivers of the right to appeal, establish that defendant's waivers of the right to appeal were made knowingly, intelligently, and voluntarily (see People v. Johnson, 122 A.D.3d 1324, 1324, 995 N.Y.S.2d 888; People v. Arney, 120 A.D.3d 949, 949, 990 N.Y.S.2d 752).
In both appeals, defendant contends in his main and pro se supplemental briefs that his respective pleas were involuntarily entered. Although those contentions survive his valid waivers of the right to appeal, they are not preserved for our review inasmuch as defendant failed to move to withdraw the respective pleas or to vacate the judgments of conviction (see People v. Guantero, 100 A.D.3d 1386, 1387, 953 N.Y.S.2d 438, lv. denied 21 N.Y.3d 1004, 971 N.Y.S.2d 256, 993 N.E.2d 1278; People v. Connolly, 70 A.D.3d 1510, 1511, 894 N.Y.S.2d 694, lv. denied 14 N.Y.3d 886, 903 N.Y.S.2d 775, 929 N.E.2d 1010), and nothing in the plea colloquies casts significant doubt on defendant's guilt or the voluntariness of his pleas, and the narrow exception to the preservation requirement therefore does not apply (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5; People v. Lewandowski, 82 A.D.3d 1602, 1602, 919 N.Y.S.2d 623).
In both appeals, the valid waivers of the right to appeal encompass defendant's challenges in his main and pro se supplemental briefs to the severity of the sentences (see People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46). Defendant's contentions in his pro se supplemental brief that the sentences in both appeals were imposed in violation of the United States Constitution also survive his valid waivers of the right to appeal (see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145), but we reject those contentions inasmuch as it cannot be said that the sentences are “grossly disproportionate to the crime[s]” ( People v. Broadie, 37 N.Y.2d 100, 111, 371 N.Y.S.2d 471, 332 N.E.2d 338, cert. denied 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287; see generally People v. Thompson, 83 N.Y.2d 477, 484, 611 N.Y.S.2d 470, 633 N.E.2d 1074).
Contrary to defendant's contention in his pro se supplemental brief in appeal No. 1, his waiver of indictment and consent to be prosecuted under a superior court information was not jurisdictionally defective (see generally CPL 195.101[b]; People v. D'Amico, 76 N.Y.2d 877, 879, 561 N.Y.S.2d 411, 562 N.E.2d 488).
Defendant's challenges in both appeals to the constitutionality of various statutes were not preserved for our review inasmuch as they were not raised during proceedings in County Court (see People v. Whitehead, 46 A.D.3d 715, 716, 848 N.Y.S.2d 657, lv. denied 10 N.Y.3d 772, 854 N.Y.S.2d 334, 883 N.E.2d 1269). In any event, those challenges are not properly before us inasmuch as defendant failed to notify the Attorney General that he would be making those challenges (see People v. Mills, 117 A.D.3d 1555, 1556, 985 N.Y.S.2d 381, lv. denied 24 N.Y.3d 1045, 998 N.Y.S.2d 315, 23 N.E.3d 158, reconsideration denied 24 N.Y.3d 1121, 3 N.Y.S.3d 763, 27 N.E.3d 477; Whitehead, 46 A.D.3d at 716, 848 N.Y.S.2d 657).
Defendant's contention in his pro se supplemental brief that he was denied effective assistance of counsel in both appeals does not survive his guilty pleas or the waivers of the right to appeal because defendant “failed to demonstrate that ‘the plea bargaining process was infected by [the] allegedly ineffective assistance or that [he] entered the plea because of his attorney ['s] allegedly poor performance’ ” (People v. Grandin, 63 A.D.3d 1604, 1604, 880 N.Y.S.2d 826, lv. denied 13 N.Y.3d 744, 886 N.Y.S.2d 98, 914 N.E.2d 1016). We have reviewed the remaining contentions in both appeals in defendant's pro se supplemental brief and conclude that they do not require reversal or modification of the judgments.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.