Opinion
06-10-2016
The PEOPLE of the State of New York, Respondent, v. Alexander S. VANVLEET, Defendant–Appellant.
Davison Law Office PLLC, Canandaigua (Mary P. Davison of Counsel), for Defendant–Appellant. Brooks T. Baker, District Attorney, Bath (John C. Tunney of Counsel), for Respondent.
Davison Law Office PLLC, Canandaigua (Mary P. Davison of Counsel), for Defendant–Appellant.
Brooks T. Baker, District Attorney, Bath (John C. Tunney of Counsel), for Respondent.
PRESENT: WHALEN, P.J., CARNI, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
MEMORANDUM: Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, burglary in the first degree (Penal Law § 140.30[4] ), robbery in the first degree (§ 160.15 [4] ), and two counts of robbery in the second degree (§ 160.10[1], [3] ). Defendant's contention that he was denied effective assistance of counsel does not survive his guilty plea because he failed to demonstrate that “ ‘the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of [defense counsel's] allegedly poor performance’ ” (People v. Lucieer, 107 A.D.3d 1611, 1612, 967 N.Y.S.2d 575 ; see People v. Russell, 55 A.D.3d 1314, 1314, 864 N.Y.S.2d 587, lv. denied 11 N.Y.3d 930, 874 N.Y.S.2d 15, 902 N.E.2d 449 ). Indeed, we note that the record establishes that defendant was motivated by, among other things, the People's promise not to prosecute a family member for hindering prosecution. We reject defendant's contention that his statement to the police was elicited in violation of his right to counsel. “Where, as here, the right to counsel is alleged to have arisen solely due to the commencement of formal proceedings on another pending charge, the police may question a suspect on an unrelated new matter in the absence of counsel” (People v. Brinson, 28 A.D.3d 1189, 1189–1190, 812 N.Y.S.2d 899, lv. denied 7 N.Y.3d 810, 822 N.Y.S.2d 485, 855 N.E.2d 801 ).
Contrary to defendant's further contention, “the fact that a witness viewed the photo array while a second witness was in the room did not taint the witness's identification of defendant's photograph in the photo array” (People v. Rodriguez, 17 A.D.3d 1127, 1129, 794 N.Y.S.2d 543, lv. denied 5 N.Y.3d 768, 801 N.Y.S.2d 263, 834 N.E.2d 1273 ). There is no evidence in the record that the second witness participated in the identification procedure or influenced the identification of defendant by the first witness. Defendant failed to preserve for our review his additional contentions that the photo array procedure was unduly suggestive (see People v. Carson, 126 A.D.3d 1537, 1538, 6 N.Y.S.3d 345, lv. denied 26 N.Y.3d 927, 17 N.Y.S.3d 90, 38 N.E.3d 836 ). In any event, those contentions are without merit. Although the witness was shown the photo array on two occasions within four days, it is well settled that “ ‘[m]ultiple photo identification procedures are not inherently suggestive’ ” (People v. Dickerson, 66 A.D.3d 1371, 1372, 887 N.Y.S.2d 387, lv. denied 13 N.Y.3d 859, 891 N.Y.S.2d 693, 920 N.E.2d 98 ). Further, the statement of the police investigator to the witness prior to the second identification procedure that there was a possible suspect in custody did not render the procedure unduly suggestive (see generally People v. Floyd, 45 A.D.3d 1457, 1459, 846 N.Y.S.2d 537, lv. denied 10 N.Y.3d 811, 857 N.Y.S.2d 44, 886 N.E.2d 809 ).
Defendant failed to preserve for our review his contention that County Court erred in imposing restitution because restitution was not part of the plea agreement (see CPL 470.05[2] ). We nevertheless exercise our power to review that contention as a matter of discretion in the interest of justice (see People v. Ponder, 42 A.D.3d 880, 882, 838 N.Y.S.2d 767, lv. denied 9 N.Y.3d 925, 844 N.Y.S.2d 180, 875 N.E.2d 899 ), and we conclude that the court should have “afforded defendant the opportunity to withdraw his plea before ordering him to pay restitution” (id. ; see People v. Wilson, 125 A.D.3d 1303, 1303, 1 N.Y.S.3d 718 ; People v. Rhodes, 91 A.D.3d 1280, 1281, 937 N.Y.S.2d 500 ). We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court to impose the promised sentence or to afford defendant the opportunity to withdraw his plea. Finally, we reject defendant's contention that the bargained-for sentence is unduly harsh and severe. It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Steuben County Court for further proceedings.