Opinion
347 KA 16-02151
04-30-2021
The PEOPLE of the State of New York, Respondent, v. Jadie M. DAVIS, Defendant-appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (HELEN SYME OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (HELEN SYME OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law and as a matter of discretion in the interest of justice by vacating that part of the sentence ordering restitution and by amending the order of protection, specifying that the order of protection in favor of Catherine Clark is to be a no-offensive-contact order, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty of arson in the second degree ( Penal Law § 150.15 ) and two counts of aggravated family offense (§ 240.75 [1]).
Initially, we agree with defendant that his waiver of the right to appeal is invalid (see People v. Thomas , 34 N.Y.3d 545, 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ; see People v. Josue F. , 191 A.D.3d 1483, 1484, 138 N.Y.S.3d 443 [4th Dept. 2021] ; People v. Davis , 189 A.D.3d 2159, 2159, 134 N.Y.S.3d 899 [4th Dept. 2020] ). Contrary to defendant's contention, the investigator's statements prior to issuing the Miranda warnings to defendant did not vitiate or neutralize the effect of the warnings (cf. People v. Dunbar , 24 N.Y.3d 304, 315-316, 998 N.Y.S.2d 679, 23 N.E.3d 946 [2014], cert denied 575 U.S. 1005, 135 S.Ct. 2052, 191 L.Ed.2d 971 [2015] ), and therefore County Court did not err in refusing to suppress his statements to the police (see People v. Box , 181 A.D.3d 1238, 1239, 119 N.Y.S.3d 650 [4th Dept. 2020], lv denied 35 N.Y.3d 1025, 126 N.Y.S.3d 24, 149 N.E.3d 862 [2020], cert denied ––– U.S. ––––, 141 S. Ct. 1099, 208 L.Ed.2d 548 [2021] ; People v. Jemes , 132 A.D.3d 1361, 1362, 17 N.Y.S.3d 539 [4th Dept. 2015], lv denied 26 N.Y.3d 1110, 26 N.Y.S.3d 768, 47 N.E.3d 98 [2016] ).
Defendant failed to preserve for our review his challenge to the voluntariness of his plea because he did not move to withdraw the plea or to vacate the judgment of conviction (see People v. Shanley , 189 A.D.3d 2108, 2108, 134 N.Y.S.3d 856 [4th Dept. 2020] ). There is a narrow exception to the preservation requirement for the "rare case ... where the defendant's recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea," thereby imposing upon the trial court "a duty to inquire further to ensure that defendant's guilty plea is knowing and voluntary" ( People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). "Where the court fails in this duty and accepts the plea without further inquiry, the defendant may challenge the sufficiency of the allocution on direct appeal, notwithstanding that a formal postallocution motion was not made" ( id. ). Here, nothing defendant said during the plea colloquy itself required the court to inquire further before accepting the plea (see Shanley , 189 A.D.3d at 2109, 134 N.Y.S.3d 856 ). Moreover, even assuming, arguendo, that the court's duty to inquire as contemplated by Lopez may be triggered by a defendant's statements at junctures subsequent to acceptance of the plea (see People v. Pastor , 28 N.Y.3d 1089, 1090-1091, 45 N.Y.S.3d 317, 68 N.E.3d 42 [2016] ; see generally People v. Delorbe , 35 N.Y.3d 112, 121, 125 N.Y.S.3d 327, 149 N.E.3d 20 [2020] ), defendant did not say anything during sentencing that required any inquiry (cf. Shanley , 189 A.D.3d at 2109, 134 N.Y.S.3d 856 ). We reject defendant's contention that statements appearing in his pre-plea report, which was prepared approximately one year prior to the plea, could trigger the court's duty to inquire (see generally id. ; People v. Herrera , 150 A.D.3d 625, 625, 55 N.Y.S.3d 220 [1st Dept. 2017], lv denied 29 N.Y.3d 1127, 64 N.Y.S.3d 677, 86 N.E.3d 569 [2017] ).
Although defendant failed to preserve his further contentions regarding restitution and the no-contact order of protection for our review, we exercise our power to review them as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ). The People correctly concede that the court erred in ordering restitution, and we therefore modify the judgment by vacating that part of the sentence ordering restitution (see People v. McBean, 192 A.D.3d 1706, ––––, 141 N.Y.S.3d 405, 2021 N.Y. Slip Op. 01931, *1 [4th Dept. 2021] ; People v. Meyers , 182 A.D.3d 1037, 1042, 123 N.Y.S.3d 342 [4th Dept. 2020], lv denied 35 N.Y.3d 1028, 126 N.Y.S.3d 46, 149 N.E.3d 884 [2020] ). We further modify the judgment by amending the order of protection to specify that the order of protection in favor of Catherine Clark is to be a no-offensive-contact order, rather than a no-contact order, in light of the fact that defendant and Clark share children in common, the court agreed to a no-offensive-contact order during the plea proceeding, Clark requested a no-offensive-contact order, and the People did not object to that modification at the time of the plea (see People v. Jenkins , 184 A.D.3d 1150, 1151, 123 N.Y.S.3d 887 [4th Dept. 2020], lv denied 35 N.Y.3d 1067, 129 N.Y.S.3d 403, 152 N.E.3d 1204 [2020] ; see generally People v. Griswold , 186 A.D.3d 1104, 1105, 127 N.Y.S.3d 374 [4th Dept. 2020], lv denied 35 N.Y.3d 1113, 133 N.Y.S.3d 520, 158 N.E.3d 537 [2020] ).