Opinion
8050 Ind. 2936/11
01-10-2019
The PEOPLE of the State of New York, Respondent, v. Devon TAYLOR, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Benjamin Wiener of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Joshua P. Weiss of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Benjamin Wiener of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Joshua P. Weiss of counsel), for respondent.
Friedman, J.P., Oing, Singh, Moulton, JJ.
The record establishes the voluntariness of defendant's plea, and the court properly denied defendant's motion to withdraw it (see People v. Frederick, 45 N.Y.2d 520, 410 N.Y.S.2d 555, 382 N.E.2d 1332 [1978] ). Defendant did not raise an intoxication defense during the plea colloquy (see People v. Pastor, 28 N.Y.3d 1089, 1090–1091, 45 N.Y.S.3d 317, 68 N.E.3d 42 [2016] ), and, to the extent he did so at sentencing, the court properly rejected his claim that his plea should be withdrawn on that basis. Defendant's claim that his plea was the product of a misunderstanding about his predicate felony status is unpreserved, and is in any event unsupported by the record.
Furthermore, the court appointed new counsel for purposes of the pro se plea withdrawal motion. When the new attorney declined to adopt the motion and stated there were no legal grounds for making such a motion, this did not reach the level of taking an adverse position to his client, and there was no need to appoint yet another attorney (see People v. Moore, 132 A.D.3d 496, 17 N.Y.S.3d 426 [1st Dept. 2015], lv denied 27 N.Y.3d 1003, 38 N.Y.S.3d 112, 59 N.E.3d 1224 [2016] ; People v. Foxworth, 25 A.D.3d 481, 807 N.Y.S.2d 296 [1st Dept. 2006], lv denied 7 N.Y.3d 756, 819 N.Y.S.2d 881, 853 N.E.2d 252 [2006] ). In any event, the claims made in the motion were "patently insufficient" ( People v. Mitchell, 21 N.Y.3d 964, 967, 970 N.Y.S.2d 919, 993 N.E.2d 405 [2013] ),
Defendant made a valid waiver of his right to appeal (see People v. Thomas, 158 A.D.3d 434, 70 N.Y.S.3d 190 [1st Dept. 2018], lv granted 31 N.Y.3d 1088, 79 N.Y.S.3d 110, 103 N.E.3d 1257 [2018] ), which forecloses his suppression and excessive sentence arguments. Regardless of whether defendant made a valid waiver of his right to appeal, we find that the warrantless taking of a blood sample from defendant while he was hospitalized was supported by exigent circumstances, and we perceive no basis for reducing the sentence.