Opinion
931 KA 19-01733
06-11-2021
The PEOPLE of the State of New York, Respondent, v. Brian STAFFORD, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE ( CHRISTINE M. COOK OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE ( CHRISTINE M. COOK OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of assault in the second degree ( Penal Law § 120.05 [3] ). Initially, we note that defendant's contention that his guilty plea was not voluntarily, knowingly, and intelligently entered survives his purported waiver of the right to appeal ( see People v. McKay , 5 A.D.3d 1040, 1041, 773 N.Y.S.2d 923 [4th Dept. 2004], lv denied 2 N.Y.3d 803, 781 N.Y.S.2d 302, 814 N.E.2d 474 [2004] ). Insofar as defendant contends that his plea was not voluntarily, knowingly, and intelligently entered because County Court failed to conduct a sufficient inquiry into whether he possessed the requisite intent to commit the offense, his contention is preserved for our review by his motion to withdraw his plea. Nevertheless, that contention lacks merit. Even assuming, arguendo, that defendant's initial statement regarding his inability to remember details of the incident "cast[ ] significant doubt upon [his] guilt or otherwise call[ed] into question the voluntariness of the plea" ( People v. Hess , 46 A.D.3d 1407, 1407, 847 N.Y.S.2d 503 [4th Dept. 2007], lv denied 10 N.Y.3d 841, 859 N.Y.S.2d 399, 889 N.E.2d 86 [2008] [internal quotation marks omitted]; see People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ), defendant unequivocally affirmed upon further questioning by the court that he possessed the requisite intent ( see generally Lopez , 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Burroughs , 106 A.D.3d 1512, 1512, 964 N.Y.S.2d 389 [4th Dept. 2013] ). Furthermore, insofar as defendant contends that his plea was not voluntarily, knowingly, and intelligently entered because the court did not address a possible intoxication defense, his contention is unpreserved for our review because he failed to move to withdraw his guilty plea or to vacate the judgment of conviction on that basis ( see People v. Bender , 270 A.D.2d 924, 925, 706 N.Y.S.2d 653 [4th Dept. 2000], lv denied 95 N.Y.2d 832, 713 N.Y.S.2d 138, 735 N.E.2d 418 [2000] ). Moreover, defendant's contention does not fall within the rare exception to the preservation requirement set forth in Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5.
Defendant's contention that the court abused its discretion in denying his motion to withdraw the plea also survives his purported waiver of the right to appeal ( see People v. Sparcino , 78 A.D.3d 1508, 1509, 911 N.Y.S.2d 523 [4th Dept. 2010], lv denied 16 N.Y.3d 746, 917 N.Y.S.2d 628, 942 N.E.2d 1053 [2011] ). Nevertheless, we reject that contention. "The decision to permit a defendant to withdraw a guilty plea rests in the sound discretion of the court" ( People v. Smith , 122 A.D.3d 1300, 1301-1302, 995 N.Y.S.2d 881 [4th Dept. 2014], lv denied 25 N.Y.3d 1172, 15 N.Y.S.3d 303, 36 N.E.3d 106 [2015] [internal quotation marks omitted]). Furthermore, "[o]nly in the rare instance will a defendant be entitled to an evidentiary hearing; often a limited interrogation by the court will suffice. The defendant should be afforded [a] reasonable opportunity to present his [or her] contentions and the court should be enabled to make an informed determination" ( People v. Tinsley , 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544 [1974] ). Here, the record establishes that defendant was afforded such an opportunity inasmuch as the court adjourned sentencing for more than two months to allow defendant to retain new counsel, file a formal motion, and argue that motion in court.
Finally, even assuming, arguendo, that defendant's waiver of the right to appeal is invalid and therefore does not preclude our review of his challenge to the severity of his sentence ( see People v. Love , 181 A.D.3d 1193, 1193, 118 N.Y.S.3d 475 [4th Dept. 2020] ), we conclude that the sentence is not unduly harsh or severe.