| People v Olmstead |
| 2010 NY Slip Op 07622 [77 AD3d 1179] |
| October 28, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v George E.Olmstead Jr., Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Victoria M. Esposito of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered February 9, 2009, convicting defendant upon his plea of guilty of thecrime of leaving the scene of an incident without reporting.
In September 2008, defendant was arraigned on an indictment that charged him with leavingthe scene of an incident without reporting and two counts of tampering with physical evidence.These charges stemmed from an incident that occurred in March 2008 where defendant, whileoperating a motor vehicle, was alleged to have struck and killed a 12-year-old boy who wasriding a snowmobile. Defendant failed to report the accident and was alleged to have placedanimal hair on the area of his vehicle that had been damaged to make it appear as if he had strucka deer. In an unrelated matter, defendant was charged in a separate indictment with two counts ofdriving while intoxicated as a felony.[FN1]In October 2008, while represented by a different attorney on each indictment, defendant enteredguilty pleas to leaving the scene of an incident without reporting and driving while intoxicated asa felony in return for a commitment that he would receive concurrent prison terms of 2 to 6 yearsand 1
When defendant appeared for sentence, County Courtindicated that it was unable to abide by the terms of the plea agreement because of statementsthat were made by defendant during the presentence investigation in which he denied knowingthat he had struck anyone at the time of the accident. Without objection, the court vacateddefendant's guilty plea to the charge of leaving the scene of an incident without reporting andpermitted him to withdraw his guilty plea to the charge of driving while intoxicated.
Three months later, defendant reappeared in County Court with Brian Pilatzke, his attorneyon the driving while intoxicated charge, again entered guilty pleas to leaving the scene of anincident without reporting and driving while intoxicated, and waived his right to appeal. JamesMonroe, his attorney on the leaving the scene of an incident charge, was not present, but allparties—including defendant—had previously agreed in a prior proceeding thatPilatzke would represent defendant on both indictments when defendant formally entered hisguilty plea. Defendant was ultimately sentenced to consecutive prison terms of2
Defendant now appeals from his conviction for leaving the scene of an incident becauseMonroe was not present when he entered his guilty plea to that charge and, as a result, hecontends that he was deprived of his right to counsel.[FN2]Moreover, he argues that it was an abuse of discretion for County Court, on its own motion, tovacate his guilty plea and to refuse to sentence him in accord with the original plea agreement.
As for defendant's claim that County Court should not have accepted his guilty plea toleaving the scene of an incident without reporting in Monroe's absence, we note that Pilatzke hadparticipated in all of the negotiations that culminated in defendant entering a guilty plea to thecharges contained in both indictments. In addition, while both indictments were never formallyconsolidated, they had, in effect, been prosecuted jointly and were processed by County Court inthe same proceedings. As a result, Pilatzke was fully apprised of the details regarding the pleaagreement and had been advised by Monroe on how to proceed at the time defendant was to enterhis guilty plea. More importantly, Monroe's absence at the time the plea was entered had beenfully discussed by all involved at a prior conference with the court, and both Monroe anddefendant agreed that Pilatzke would represent defendant when he formally entered guilty pleasto both charges. Finally, during his plea allocution, defendant informed the court that while hewas aware that Monroe would not be present at the time he entered his guilty plea, he haddiscussed the particulars of the plea agreement with him and was willing to enter a guilty plea asto both charges in Monroe's absence while being represented by Pilatzke.
To the extent that defendant's claim of ineffective assistance of counsel impacted thevoluntariness of his plea, while such a claim would survive his waiver of the right to appeal, itwas not preserved by either a motion to withdraw the plea or vacate his judgment of conviction(see People v Holmes, 75 AD3d834 [2010]; People v Singh, 73AD3d 1384, 1385 [2010], lv denied 15 NY3d 809 [2010]).[*3]
Finally, defendant argues that County Court abused itsdiscretion by refusing to honor the terms of the original plea agreement and, on its own motion,vacating his guilty plea. However, defendant did not object when the court vacated his guiltyplea, and such a claim is precluded by his valid waiver of his right to appeal (see People v Lopez, 6 NY3d 248,255 [2006]). Moreover, defendant's statements in the presentence investigation—none ofwhich he denied making—cast significant doubt on the integrity of his plea allocution andprovided ample justification for the court's determination that it could not abide by the terms ofthe plea agreement (see generally Peoplev Wagoner, 30 AD3d 629, 630 [2006]).
Mercure, J.P., Rose, Malone Jr. and Stein, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: At the time of his indictment,defendant had a prior conviction for driving while intoxicated as a felony.
Footnote 2: Defendant had also filed anotice of appeal from his judgment of conviction of driving while intoxicated. Counsel submittedan Anders brief and this Court affirmed that conviction (People v Olmstead, 70 AD3d 1067[2010]).