Opinion
252 KA 11-02500
03-27-2015
The PEOPLE of the State of New York, Respondent, v. Richard PITCHER, Defendant–Appellant.
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of Counsel), for Defendant–Appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
PRESENT: SMITH, J.P., CARNI, SCONIERS, and VALENTINO, JJ.
Opinion
MEMORANDUM:Defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the first degree (Penal Law § 140.30 [2 ] ). Initially, we agree with defendant that his waiver of the right to appeal was not valid (see People v. Trinidad–Ayala, 114 A.D.3d 1229, 1229, 980 N.Y.S.2d 849, lv. denied 23 N.Y.3d 1044, 993 N.Y.S.2d 257, 17 N.E.3d 512 ). Defendant failed to preserve for our review, however, his challenge to the factual sufficiency of the plea colloquy (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Spears, 106 A.D.3d 1534, 1535, 964 N.Y.S.2d 452, affd. 24 N.Y.3d 1057, 999 N.Y.S.2d 818, 24 N.E.3d 1082 ). Contrary to defendant's contention, this case does not fall within the rare exception to the preservation requirement set forth in Lopez because nothing in the plea allocution calls into question the voluntariness of the plea or casts “significant doubt” upon his guilt ( id. at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; see People v. Lewandowski, 82 A.D.3d 1602, 1602, 919 N.Y.S.2d 623 ). In any event, even assuming, arguendo, that defendant's initial hesitation to implicate his codefendant in the crime called into question the voluntariness of defendant's plea, we conclude on the record before us that County Court fulfilled its “duty to inquire further to ensure that defendant's guilty plea [was] knowing and voluntary” (Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; see People v. Mitchell, 48 A.D.3d 1081, 1082, 849 N.Y.S.2d 813, lv. denied 10 N.Y.3d 867, 860 N.Y.S.2d 493, 890 N.E.2d 256 ).
Defendant failed to move to withdraw his plea, and thus he failed to preserve for our review his further contention that his plea was coerced by the court (see People v. Carlisle, 50 A.D.3d 1451, 1451, 856 N.Y.S.2d 410, lv. denied 10 N.Y.3d 957, 863 N.Y.S.2d 141, 893 N.E.2d 447 ). In any event, that contention is belied by the record because, during the plea proceeding, defendant denied that he had been threatened or otherwise pressured into pleading guilty (see People v. Worthy, 46 A.D.3d 1382, 1382, 847 N.Y.S.2d 806, lv. denied 10 N.Y.3d 773, 854 N.Y.S.2d 334, 883 N.E.2d 1269 ; People v. Gradia, 28 A.D.3d 1206, 1206–1207, 812 N.Y.S.2d 922, lv. denied 7 N.Y.3d 756, 819 N.Y.S.2d 882, 853 N.E.2d 253 ). Furthermore, the court did not coerce defendant into pleading guilty merely by informing him of the range of sentences that he faced if he proceeded to trial and was convicted (see People v. Boyde, 71 A.D.3d 1442, 1443, 897 N.Y.S.2d 570, lv. denied 15 N.Y.3d 747, 906 N.Y.S.2d 820, 933 N.E.2d 219 ; People v. Lando, 61 A.D.3d 1389, 1389, 876 N.Y.S.2d 923, lv. denied 13 N.Y.3d 746, 886 N.Y.S.2d 100, 914 N.E.2d 1018 ), or by commenting on the strength of the People's evidence against him (see generally People v. Hamilton, 45 A.D.3d 1396, 1396, 844 N.Y.S.2d 797, lv. denied 10 N.Y.3d 765, 854 N.Y.S.2d 327, 883 N.E.2d 1262 ; People v. Campbell, 236 A.D.2d 877, 878, 653 N.Y.S.2d 758 ). In addition, “the fact that defendant was required ‘to accept or reject the plea offer within a short time period does not amount to coercion’ ” (People v. Irvine, 42 A.D.3d 949, 949, 838 N.Y.S.2d 765, lv. denied 9 N.Y.3d 962, 848 N.Y.S.2d 31, 878 N.E.2d 615 ; see People v. Mason, 56 A.D.3d 1201, 1202, 867 N.Y.S.2d 609, lv. denied 11 N.Y.3d 927, 874 N.Y.S.2d 12, 902 N.E.2d 446 ).
We reject the further contention of defendant that the court erred in determining that he was not entitled to receive the benefit of a favorable sentencing provision of the plea agreement, which required him to cooperate with the People in the prosecution of his codefendant. At the time of the plea, the court indicated that it would sentence defendant to a lesser sentence if he cooperated in the prosecution of his codefendant, including providing truthful testimony at his codefendant's trial, but that it would impose the maximum sentence if defendant failed to cooperate. Defendant later informed the probation officer who prepared the presentence report that he would not testify against the codefendant. Based on the information that defendant provided to the prosecutor in a meeting prior to the codefendant's trial, which varied from the testimony provided by all the other witnesses, and upon defendant's statements to the probation officer, the prosecutor determined that defendant would not provide truthful testimony and declined to call him as a witness at the codefendant's trial. Furthermore, when called as a defense witness at that trial, defendant invoked his rights under the Fifth Amendment of the United States Constitution. We agree with the People that defendant's efforts to cooperate were “of questionable value and ... clearly less than what the People bargained for” (People v. Paige, 266 A.D.2d 587, 588, 697 N.Y.S.2d 771, lv. denied 94 N.Y.2d 827, 702 N.Y.S.2d 598, 724 N.E.2d 390 ; see generally People v. Curdgel, 83 N.Y.2d 862, 864, 611 N.Y.S.2d 827, 634 N.E.2d 199 ). Defendant's contention that the cooperation contemplated by the plea agreement did not require him to testify against his codefendant is belied by the record (cf. People v. Gabbidon, 96 A.D.3d 1235, 1236, 946 N.Y.S.2d 899 ). Consequently, “the record supports the court's determination that defendant's level of cooperation in the trial of [his codefendant] was insufficient” (People v. Crawford, 55 A.D.3d 1335, 1336, 864 N.Y.S.2d 820, lv. denied 11 N.Y.3d 896, 873 N.Y.S.2d 272, 901 N.E.2d 766 ).
Defendant further contends that he was denied effective assistance of counsel because defense counsel did not file certain motions and was late in arriving in court at times. Defendant's contention “survives his guilty plea only to the extent that [he] contends that his plea was infected by the alleged ineffective assistance.” In that context, we conclude that defendant received meaningful representation inasmuch as he received “an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel” (People v. Nieves, 299 A.D.2d 888, 889, 750 N.Y.S.2d 677, lv. denied 99 N.Y.2d 631, 760 N.Y.S.2d 112, 790 N.E.2d 286 [internal quotation marks omitted]; see People v. Arney, 120 A.D.3d 949, 950, 990 N.Y.S.2d 752 ; People v. Campbell, 106 A.D.3d 1507, 1508, 966 N.Y.S.2d 313, lv. denied 21 N.Y.3d 1002, 971 N.Y.S.2d 254, 993 N.E.2d 1276 ).
As the People correctly concede, the uniform sentence and commitment sheet incorrectly recites that defendant was convicted of robbery in the first degree. The sentence and commitment must therefore be amended to correct the clerical error and to reflect that defendant was convicted of burglary in the first degree (see generally People v. Saxton, 32 A.D.3d 1286, 1286–1287, 821 N.Y.S.2d 353 ).
The sentence is not unduly harsh or severe. We have considered defendant's remaining contentions and conclude that they are without merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.