People v. Nisby

207 A.D.3d 876

172 N.Y.S.3d 190

The PEOPLE of the State of New York, Respondent,

v.Shannon NISBY, Also Known as Moon, Appellant.

111492

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: June 2, 2022

Decided and Entered: July 14, 2022

Powers & Santola, LLP, Albany (Michael J. Hutter of counsel), for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Lynch, Reynolds Fitzgerald and McShan, JJ.

MEMORANDUM AND ORDER

McShan, J.

Appeal from a judgment of the Supreme Court (Hogan, J.), rendered December 21, 2018 in Schenectady County, convicting defendant upon his plea of guilty of the crime of attempted assault in the first degree.

Defendant and a codefendant were charged by indictment with various crimes, including attempted murder in the first degree, attempted assault in the first degree and assault in the second degree, stemming from an incident where the codefendant allegedly stabbed the victim. In satisfaction thereof, defendant pleaded guilty to attempted assault in the first degree and purportedly waived the right to appeal. Prior to sentencing, defendant made two motions seeking to withdraw his plea, citing new evidence and claiming that the plea was not knowingly, intelligently and voluntarily entered. Supreme Court denied the motions without a hearing and sentenced defendant, as a second violent felony offender, to the agreed-upon prison term of 10 years, to be followed by five years of postrelease supervision. Defendant appeals.

Defendant initially contends that his waiver of the right to appeal is invalid. We agree. Defendant executed a written appeal waiver that was overbroad, inasmuch as it indicated that the waiver was a complete bar to a direct appeal as well as to collateral relief on certain nonwaivable issues in both state and federal courts (see People v. Bisono, 36 N.Y.3d 1013, 1017–1018, 140 N.Y.S.3d 433, 164 N.E.3d 239 [2020] ; People v. Hilts, 200 A.D.3d 1306, 1306, 155 N.Y.S.3d 385 [2021] ; People v. Lunan, 196 A.D.3d 969, 969, 148 N.Y.S.3d 408 [2021] ). Moreover, Supreme Court did not overcome this overbroad language by ensuring during the colloquy that defendant understood that some appellate and collateral review survived the waiver (see People v. Robinson, 195 A.D.3d 1235, 1236, 145 N.Y.S.3d 864 [2021] ; People v. Avera, 192 A.D.3d 1382, 1382, 145 N.Y.S.3d 199 [2021], lv denied 37 N.Y.3d 953, 147 N.Y.S.3d 501, 170 N.E.3d 375 [2021] ).

Nevertheless, we find that defendant's remaining contentions lack merit and therefore affirm. Defendant challenges the voluntariness of his plea and makes a related claim that Supreme Court abused its discretion in denying his motions to withdraw his plea. To this end, he argues that his plea was not knowing, intelligent and voluntary due to Supreme Court not affirming during the plea colloquy that he was pleading guilty as an accomplice, rather than as the actual perpetrator of the attack on the victim. " ‘Whether a defendant is charged as a principal or as an accomplice to a crime has no bearing on the theory of the prosecution,’ as there is no legal distinction between criminal liability as a principal or as an accessory" ( People v. Spencer, 169 A.D.3d 1268, 1272, 95 N.Y.S.3d 435 [2019], lvs denied 34 N.Y.3d 935, 938, 109 N.Y.S.3d 727, 133 N.E.3d 430, 431 [2019], quoting People v. Rivera, 84 N.Y.2d 766, 769, 622 N.Y.S.2d 671, 646 N.E.2d 1098 [1995] ). As such, "[t]he People are not required to specify in an indictment whether a defendant is being charged as a principal or as an accomplice" ( People v. Guidice, 83 N.Y.2d 630, 637, 612 N.Y.S.2d 350, 634 N.E.2d 951 [1994] ; see People v. Rivera, 84 N.Y.2d at 771, 622 N.Y.S.2d 671, 646 N.E.2d 1098 ; People v. Thompson, 75 A.D.3d 760, 765, 904 N.Y.S.2d 797 [2010], lvs denied 15 N.Y.3d 893, 894 896, 912 N.Y.S.2d 581, 582, 584, 938 N.E.2d 1016, 1017, 1019 [2010]).

The record reflects that during the plea colloquy defendant admitted to the conduct outlined in the count of the indictment charging defendant and the codefendant with attempted assault in the first degree, as read by Supreme Court.¹ In pleading guilty to that offense, he voluntarily admitted that he had engaged in conduct satisfying all the elements of that crime. While defendant is correct that the People would have been required to submit an accessorial liability charge to a jury in order to obtain a conviction under that theory at trial (see People v. Dlugash, 41 N.Y.2d 725, 731, 395 N.Y.S.2d 419, 363 N.E.2d 1155 [1977] ; People v. Ballo, 191 A.D.3d 482, 483, 138 N.Y.S.3d 511 [2021], lv denied 37 N.Y.3d 953, 147 N.Y.S.3d 505, 170 N.E.3d 379 [2021] ), that did not foreclose defendant from pleading guilty to the charge as contained in the indictment, which did not need to specify the theory under which the People would later proceed. To this end, the record reflects that Supreme Court advised defendant that, by pleading guilty, he was relinquishing his right to a jury trial where the People would be required to prove the charges against him beyond a reasonable doubt and defendant affirmed that he understood (see People v. Moore, 201 A.D.3d 1209, 1211, 159 N.Y.S.3d 766 [2022] ; People v. Carl, 188 A.D.3d 1304, 1306, 133 N.Y.S.3d 346 [2020], lv denied 37 N.Y.3d 954, 147 N.Y.S.3d 546, 170 N.E.3d 420 [2021] ; see also People v. Ballo, 191 A.D.3d at 483, 138 N.Y.S.3d 511 ). As defendant did not make any statements during the plea colloquy that cast doubt on his guilt – particularly, one that would negate his shared intent to commit the offense – Supreme Court was under no further obligation to affirm that defendant was pleading guilty in accordance with the People's theory of accessorial liability prior to accepting his plea (see People v. Kaszubinski, 55 A.D.3d 1133, 1136, 865 N.Y.S.2d 772 [2008], lv denied 12 N.Y.3d 855, 881 N.Y.S.2d 667, ...