Opinion
12-23-2016
The PEOPLE of the State of New York, Respondent, v. Curtis N. HENDERSON, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Romana A. Lavalas of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of Counsel), for Defendant–Appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Romana A. Lavalas of Counsel), for Respondent.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, NEMOYER, AND SCUDDER, JJ.
MEMORANDUM:Defendant appeals from a judgment convicting him upon his plea of guilty of manslaughter in the first degree (Penal Law § 125.20 [1] ). Even assuming, arguendo, that defendant's challenge to the sufficiency of the Miranda warnings provided to him prior to his interrogation is preserved for our review (see People v. Smith, 22 N.Y.3d 462, 465, 982 N.Y.S.2d 809, 5 N.E.3d 972 ; cf. People v. Louisias, 29 A.D.3d 1017, 1018–1019, 815 N.Y.S.2d 727, lv. denied 7 N.Y.3d 814, 822 N.Y.S.2d 489, 855 N.E.2d 805 ), we conclude that it is without merit. "[T]he warnings adequately conveyed that defendant had the right not only to have a lawyer present during the entire questioning but to ask for or access that lawyer at any point during the questioning" (People v. Barber–Montemayor, 138 A.D.3d 1455, 1455, 30 N.Y.S.3d 450, lv. denied 28 N.Y.3d 926, 40 N.Y.S.3d 354, 63 N.E.3d 74 ).
We reject defendant's further contention that Supreme Court abused its discretion in denying his pro se request to withdraw his guilty plea without conducting an evidentiary hearing. The court afforded defendant the requisite opportunity to present his contentions (see People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544 ), and defendant's claim that he pleaded guilty because of duress arising from, inter alia, an alleged assault by a jail deputy was belatedly raised (see People v. Nash [Appeal No. 1], 288 A.D.2d 937, 937, 732 N.Y.S.2d 201, lv. denied 97 N.Y.2d 686, 738 N.Y.S.2d 301, 764 N.E.2d 405 ; People v. Hanley, 255 A.D.2d 837, 838, 682 N.Y.S.2d 245, lv. denied 92 N.Y.2d 1050, 685 N.Y.S.2d 428, 708 N.E.2d 185 ), contradicted by his statements during the plea colloquy (see People v. McKoy, 60 A.D.3d 1374, 1374, 875 N.Y.S.2d 721, lv. denied 12 N.Y.3d 856, 881 N.Y.S.2d 668, 909 N.E.2d 591 ; Hanley, 255 A.D.2d at 837–838, 682 N.Y.S.2d 245 ), and entirely uncorroborated (see Nash, 288 A.D.2d at 937, 732 N.Y.S.2d 201 ; People v. Morris, 107 A.D.2d 973, 974–975, 484 N.Y.S.2d 697 ; cf. People v. Flowers, 30 N.Y.2d 315, 317–319, 333 N.Y.S.2d 393, 284 N.E.2d 557 ). Under those circumstances, the court was entitled to determine that defendant's allegation was "a belated maneuver that had no foundation in truth," and thus that an evidentiary hearing was not required (People v. Cannon [Appeal No. 1], 78 A.D.3d 1638, 1638, 910 N.Y.S.2d 745, lv. denied 16 N.Y.3d 742, 917 N.Y.S.2d 624, 942 N.E.2d 1049 ; cf. People v. Brown, 14 N.Y.3d 113, 116, 897 N.Y.S.2d 674, 924 N.E.2d 782 ). In addition, we conclude that the record does not support defendant's contention that defense counsel took a position adverse to him in connection with the plea withdrawal request (see People v. Pimentel, 108 A.D.3d 861, 862–863, 969 N.Y.S.2d 574, lv. denied 21 N.Y.3d 1076, 974 N.Y.S.2d 325, 997 N.E.2d 150 ; People v. Sylvan, 108 A.D.3d 869, 871, 969 N.Y.S.2d 578, lv. denied 22 N.Y.3d 1091, 981 N.Y.S.2d 676, 4 N.E.3d 978 ; cf. People v. King, 129 A.D.3d 992, 993, 12 N.Y.S.3d 151 ).
We agree with defendant, however, that the court erred in failing to determine at sentencing whether he should be afforded youthful offender status (see People v. Rudolph, 21 N.Y.3d 497, 501, 974 N.Y.S.2d 885, 997 N.E.2d 457 ). Contrary to the People's contention, the court's statements during the plea proceeding to the effect that it was not inclined to grant defendant youthful offender status do not obviate the need for remittal (see People v. Eley, 127 A.D.3d 583, 584, 5 N.Y.S.3d 437 ; see also People v. Gutierrez, 140 A.D.3d 407, 408, 30 N.Y.S.3d 869 ; People v. Munoz, 117 A.D.3d 1585, 1585, 985 N.Y.S.2d 816 ). Moreover, inasmuch as a youthful offender determination must be made "in every case where the defendant is eligible" (Rudolph, 21 N.Y.3d at 501, 974 N.Y.S.2d 885, 997 N.E.2d 457 ), we reject the People's contention that remittal "would be futile and pointless" here. We therefore hold the case, reserve decision, and remit the matter to Supreme Court to make and state for the record a determination whether defendant should be afforded youthful offender status. In view of our determination, we do not address defendant's challenge to the severity of the sentence.
It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Supreme Court, Onondaga County, for further proceedings.