Opinion
11-03-2016
The PEOPLE of the State of New York, Respondent, v. Edward Earl CURTIS, Appellant.
John Ferrara, Monticello, for appellant. James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), for respondent.
John Ferrara, Monticello, for appellant.
James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), for respondent.
Before: McCARTHY, J.P., GARRY, DEVINE, CLARK and MULVEY, JJ.
GARRY, J.Appeal from a judgment of the County Court of Sullivan County (McGuire, J.), rendered July 30, 2014, convicting defendant upon his plea of guilty of the crime of burglary in the second degree (two counts).
On two occasions in June 2013, defendant drove his wife and son around the Town of Delaware, Sullivan County looking for houses to burglarize. On each occasion, the son selected a home, and defendant waited outside while the wife and son entered the residence, stole jewelry and other items and brought the items back to the vehicle. Defendant then brought the stolen items to pawn shops and sold them. He was arrested in connection with these and several other burglaries and was charged with burglary in the second degree (five counts), criminal mischief in the fourth degree (two counts) and criminal possession of stolen property in the fourth degree. Defendant pleaded guilty to two counts of burglary in the second degree under an agreement by which he preserved his right to appeal. Based upon the plea agreement, County Court sentenced him to concurrent prison terms of 12 ½ years with five years of postrelease supervision on each of the burglary convictions. Defendant appeals.
We reject defendant's contention that County Court erred in denying his suppression motion. Defendant made only a brief, conclusory claim that there was no probable cause for his arrest, lacking factual support (see People v. Vanness, 106 A.D.3d 1265, 1266, 965 N.Y.S.2d 227 [2013], lv. denied 22 N.Y.3d 1044, 981 N.Y.S.2d 378, 4 N.E.3d 390 [2013] ). As for his challenge to the search of his home and vehicle, defendant asserted that he was under arrest when he gave consent and was not told that he did not have to sign the consent forms. However, police are not required to inform a defendant that he or she may refuse to consent to a search (see People v. Kuhn, 33 N.Y.2d 203, 208–209, 351 N.Y.S.2d 649, 306 N.E.2d 777 [1973] ; People v. Todd, 149 A.D.2d 826, 827, 540 N.Y.S.2d 349 [1989], lv. denied 74 N.Y.2d 795, 545 N.Y.S.2d 556, 544 N.E.2d 234 [1989] ), and neither the failure to give this advice nor the fact that a defendant was in custody when his or her consent was obtained, without more, necessarily establishes that the consent was involuntary (see People v. Rodriguez, 11 N.Y.2d 279, 287, 229 N.Y.S.2d 353, 183 N.E.2d 651 [1962] ; People v. Williford, 124 A.D.3d 1076, 1078, 1 N.Y.S.3d 551 [2015], lv. denied 25 N.Y.3d 1209, 16 N.Y.S.3d 532, 37 N.E.3d 1175 [2015] ). Defendant made no other allegations suggesting that coercive tactics were used to obtain his signature or otherwise giving rise to issues of fact as to the voluntariness of his consent (see CPL 710.60[1] ; People v. Williford, 124 A.D.3d at 1078, 1 N.Y.S.3d 551 ; compare People v. Gonzalez, 39 N.Y.2d 122, 130–131, 383 N.Y.S.2d 215, 347 N.E.2d 575 [1976] ). A hearing on a suppression motion “[is] not automatic or generally available for the asking by boilerplate allegations” (People v. Mendoza, 82 N.Y.2d 415, 422, 604 N.Y.S.2d 922, 624 N.E.2d 1017 [1993] ; accord People v. Gadsden, 273 A.D.2d 701, 701, 711 N.Y.S.2d 788 [2000], lv. denied 95 N.Y.2d 934, 721 N.Y.S.2d 610, 744 N.E.2d 146 [2000] ). Such a motion may be summarily denied when “[t]he motion papers do not allege a ground constituting legal basis for the motion or ... [t]he sworn allegations of fact do not as a matter of law support the ground alleged” (CPL 710.60[3][a], [b] ). As defendant's submission did not give rise to any factual disputes on material issues, County Court properly denied the motion without a hearing (see generally People v. Briskin, 125 A.D.3d 1113, 1117, 3 N.Y.S.3d 200 [2015], lv. denied 25 N.Y.3d 1069, 12 N.Y.S.3d 621, 34 N.E.3d 372 [2015] ; People v. Lamont, 21 A.D.3d 1129, 1130, 800 N.Y.S.2d 480 [2005], lv. denied 6 N.Y.3d 835, 814 N.Y.S.2d 83, 847 N.E.2d 380 [2006] ).
Although the consent forms that defendant signed were apparently not before County Court when the motion was decided, they are part of our record. Notably, both contain defendant's unequivocal acknowledgment that he was advised that he had the right to refuse to consent and could revoke his consent at any time (see People v. Garnsey, 288 A.D.2d 761, 762, 733 N.Y.S.2d 742 [2001], lv. denied 97 N.Y.2d 754, 742 N.Y.S.2d 614, 769 N.E.2d 360 [2002] ).
Defendant's claim that his counsel was unable to access the contents of a compact disk supplied by the People that purportedly contained copies of pertinent evidence is belied by the record, which establishes that the People offered to provide full assistance in doing so.
Next, defendant contends that he was denied the effective assistance of counsel on the ground that his counsel misunderstood the plea agreement. This claim is unpreserved for review, as the record does not reveal that defendant made an appropriate postallocution motion (see People v. Jenkins, 130 A.D.3d 1091, 1091, 12 N.Y.S.3d 384 [2015] ; People v. Feliciano, 108 A.D.3d 880, 881, 969 N.Y.S.2d 221 [2013], lv. denied 22 N.Y.3d 1040, 981 N.Y.S.2d 374, 4 N.E.3d 386 [2013] ). In any event, were the issue before us we would have rejected it. Counsel's argument at sentencing that the prison term of 12 ½ years was a recommended maximum rather than an agreed-upon period of incarceration did not reflect confusion, but instead, counsel's strategy—previously discussed on the record—to add medical evidence to the record supporting a claim that defendant should receive a reduced sentence because he was being treated for a serious illness. Although County Court rejected this argument, counsel nevertheless achieved his stated goal of preserving the issue for appeal; additionally, he obtained an advantageous plea agreement, and defendant stated on the record that he was satisfied with his representation (see People v. Briggs, 138 A.D.3d 1355, 1356, 30 N.Y.S.3d 748 [2016], lv. denied 28 N.Y.3d 927, 40 N.Y.S.3d 355, 63 N.E.3d 75 [2016] ; People v. Wren, 119 A.D.3d 1291, 1292, 990 N.Y.S.2d 731 [2014], lv. denied 24 N.Y.3d 1048, 998 N.Y.S.2d 318, 23 N.E.3d 161 [2014] ).
At defense counsel's request, County Court granted two sentencing adjournments to provide time to obtain the medical records in question.
Contrary to the People's argument, defendant's claim that his sentence is harsh and excessive is not foreclosed by his guilty plea, as he preserved his right to appeal (see People v. McKnight, 129 A.D.3d 1459, 1460, 12 N.Y.S.3d 681 [2015], lvs. denied 26 N.Y.3d 932, 17 N.Y.S.3d 95, 38 N.E.3d 841 [2015] ). Nevertheless, defendant's sentence was considerably lower than the maximum he could have received. He was fully aware of his medical condition when he accepted the plea bargain, and County Court gave due consideration to the mitigating medical information that defense counsel submitted before imposing the agreed-upon sentence. In view of these factors and defendant's failure to accept responsibility or cooperate with the presentencing investigation—despite a provision in the plea agreement requiring him to do so—we find no extraordinary circumstances or abuse of discretion warranting a modification (see People v. Cridelle, 283 A.D.2d 775, 775–776, 724 N.Y.S.2d 375 [2001] ; People v. Ormsby, 242 A.D.2d 840, 840–841, 662 N.Y.S.2d 619 [1997], lv. denied 91 N.Y.2d 895, 669 N.Y.S.2d 10, 691 N.E.2d 1036 [1998] ).
ORDERED that the judgment is affirmed.
McCARTHY, J.P., DEVINE, CLARK and MULVEY, JJ., concur.