| People v Davis |
| 2010 NY Slip Op 02878 [72 AD3d 1206] |
| April 8, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JustinRodgers Davis, Appellant. |
—[*1]
Kavanagh, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered January 9, 2009, convicting defendant upon his plea of guilty of thecrime of rape in the third degree.
In July 2008, defendant was charged by indictment with rape in the third degree and othercrimes, all based upon an allegation that he provided a 16-year-old girl with alcohol and hadsexual relations with her. After his motion to suppress a statement he gave to the police wasdenied by County Court, defendant pleaded guilty to rape in the third degree in satisfaction of allcharges pending against him in the indictment. Prior to sentencing, defendant moved to withdrawhis plea claiming that he was innocent of any wrongdoing. County Court denied the motion andimposed a two-year prison sentence, plus 10 years of postrelease supervision. Defendant nowappeals, claiming that he did not receive the effective assistance of counsel and County Courterred by denying his motion to suppress, refusing his request for new counsel and by imposing asentence that did not comply with the terms of the plea agreement.
Defendant initially claims that once he filed complaints against the Public Defender with theCommittee on Professional Standards, County Court should have assigned new counsel torepresent him. However, we note that defendant, when he first complained about the Public[*2]Defender, did not notify County Court either in person or byletter that he had filed these disciplinary complaints. More importantly, once the existence ofthese grievances became known and part of the public record, the Public Defender requested thathe be relieved as counsel and new counsel was in fact assigned to represent defendant. It wasonly after new counsel was assigned that defendant entered his guilty plea. As a result, his claimregarding the Public Defender's conflict of interest—and how it may have compromisedhis efforts on defendant's behalf—has been rendered moot (see generally People vSides, 75 NY2d 822 [1990]).
We also find that County Court did not err by denying defendant's motion to suppress.Defendant contends that the involvement of his parole officer in the investigation and hispresence at police headquarters while defendant was being questioned was so inherently coercivethat it served to create a reasonable doubt as to the voluntariness of any statements that defendantmade to the police.[FN*]State Trooper Todd McPhail testified that he went to defendant's home with defendant's paroleofficer and informed defendant that an investigation was being conducted into allegations madeagainst him by the victim. Defendant agreed to return to police headquarters and, upon theirarrival, defendant and McPhail went to an interview room where defendant waived hisMiranda rights and agreed to answer questions concerning the victim's complaints. Theparole officer did not participate in the interview and remained outside the interview room whiledefendant was being questioned. Some three hours later, defendant signed a written statementthat was the subject of his motion to suppress. No evidence has been presented that the paroleofficer in any way participated in the interview or provided defendant with any advice or soughtto convince him that he ought to waive his constitutional right against self-incrimination andcooperate with the police (see People v Jackson, 101 AD2d 955, 955 [1984]). Moreover,a review of the circumstances under which the statement was taken (see People v Pouliot, 64 AD3d1043, 1044 [2009], lv denied 13 NY3d 838 [2009]; People v McLean, 59 AD3d 861,863 [2009], lv granted 12 NY3d 927 [2009]) established that it was voluntarily madeafter defendant knowingly and intelligently waived his constitutional rights. As a result, hismotion to suppress this statement was properly denied (see People v Culver, 69 AD3d 976, 977 [2010]; People v Berumen, 46 AD3d1019, 1021 [2007], lv denied 10 NY3d 808 [2008]; People v Baker, 27 AD3d 1006,1008 [2006], lv denied 7 NY3d 785 [2006]).
Finally, we do not agree that defendant was denied the effective assistance of counsel.Specifically, defendant claims that the Public Defender did not immediately seek to be relievedfrom representing him once he learned that defendant had filed complaints against him with theCommittee on Professional Standards and, as a result, defendant was deprived of the meaningfulassistance of counsel during a critical period in the underlying proceedings. However, the recordestablishes that the Public Defender sought to be relieved within days of learning of theexistence of these complaints. Moreover, we note that the Public Defender, while he representeddefendant, filed timely pretrial motions on his behalf, competently represented his interests at thehearing on defendant's motion to suppress and obtained a favorable plea agreement thatdefendant chose to reject. Viewing the representation that defendant received throughout theseproceedings—including that provided by new counsel at the time defendant entered hisguilty plea—we are of the view that defendant received meaningful representation (seePeople v Baldi, 54 NY2d 137, 147 [1981]; People v Jackson, 67 AD3d 1067, 1069 [2009]; People vCarmona, [*3]66 AD3d 1240, 1242 [2009]).
However, we do agree that County Court erred in the sentence that it ultimately imposedupon defendant. In the plea agreement accepted by defendant and approved by the court, it wasagreed that defendant could choose between serving 2½ years in prison plus five years ofpostrelease supervision, or two years in prison plus 10 years of postrelease supervision. Afterdefendant chose the former option, County Court sentenced him to two years in prison plus 10years of postrelease supervision. Since defendant did not receive the agreed-upon sentence, wemust, as the People concede, vacate the sentence imposed by County Court and remit the matterfor resentencing in accord with the terms of the plea agreement.
Cardona, P.J., Peters, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment ismodified, on the law, by vacating the sentence imposed; matter remitted to the County Court ofWashington County for resentencing; and, as so modified, affirmed.
Footnote *: Defendant was on parole as aresult of his conviction for criminal possession of a controlled substance in the third degree.