| People v Whalen |
| 2012 NY Slip Op 08358 [101 AD3d 1167] |
| December 6, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RaymondWhalen, Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, New York City (Hannah Stith Long of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of St. Lawrence County (Rogers, J.),rendered January 13, 2011, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the third degree.
As the result of a wiretap investigation by the Attorney General's Organized Crime TaskForce into drug activity in St. Lawrence County, defendant and two codefendants were named ina sealed indictment which, among other things, charged defendant with conspiracy in the fourthdegree, criminal possession of a controlled substance in the first degree and criminal possessionof a controlled substance in the third degree. Following the denial of defendant's motion tosuppress over 10 ounces of cocaine that had been seized from his vehicle, defendant pleadedguilty to criminal possession of a controlled substance in the third degree in satisfaction of theindictment.[FN1]Pursuant to the plea bargain, defendant was sentenced as a second felony offender [*2]to a prison term of five years, followed by three years of postreleasesupervision. This appeal followed.
We affirm. Initially, we are unpersuaded by defendant's contention that County Court erred indenying his motion to suppress the cocaine seized from his disabled vehicle parked in a retailstore parking lot. State Trooper Daniel Snyder and his canine partner Juna were dispatched to thescene after electronic surveillance of defendant's phone revealed that his truck had broken downand there was a possibility he had driven there for purposes of a narcotics sale. Snyder testifiedthat he approached defendant and, as he asked him basic questions about his vehicle and what hewas doing in the area, observed that defendant was "extremely nervous" and would not calmdown. Snyder further testified that defendant told him that he was planning to meet someone at afast-food restaurant in a location that Snyder knew—from his own first-hand knowledge ofthe area—was false. According to Snyder, he then asked for and received defendant'sconsent to search his truck, at which point Snyder utilized Juna to conduct an exterior sniff of thevehicle. After the dog alerted to the presence of narcotics, Snyder asked defendant why Junawould do so and defendant responded that he had a small amount of marihuana in the vehicle.Based upon this admission, Snyder frisked defendant and then searched the vehicle, ultimatelyfinding, among other things, over 10 ounces of cocaine. Although defendant testified during thehearing on his suppression motion that he never gave consent to search his vehicle, County Courtcredited Snyder's testimony and denied the motion.
The police are permitted to approach a parked vehicle and request information concerningidentity and destination when there is an articulable "objective, credible reason" for doing so(People v Ocasio, 85 NY2d 982, 984 [1995]), such as, for example, "mak[ing] sure [that]everything [is] okay" (People vStory, 81 AD3d 1168, 1168 [2011]). Here, defendant does not dispute that Snyder wasjustified in approaching him to make some basic queries based upon his disabled vehicle (see People v Wallgren, 94 AD3d1339, 1340 [2012]). Thereafter, defendant's highly nervous demeanor and false answerregarding his destination were sufficient to afford Snyder a "founded suspicion that criminalactivity [was] afoot" (People vDevone, 15 NY3d 106, 110 [2010]; see People v De Bour, 40 NY2d 210, 223[1976]). Given that founded suspicion, Snyder's subsequent request for consent was proper (see People v Oldacre, 53 AD3d675, 676-677 [2008]), as was his action in directing a canine sniff of the vehicle's exterior(see People v Devone, 15 NY3d at 113-114). Although defendant maintains that hisversion of events was more credible than that of Snyder, "much weight must be accorded [to] thedetermination of the suppression court with its peculiar advantages of having seen and heard thewitnesses" (People v Prochilo, 41 NY2d 759, 761 [1977]; see People v Horge, 80 AD3d1074, 1074 [2011]).
We find no abuse of discretion in County Court's refusal to assign new defense counsel inresponse to a letter from defendant making such request. A removal request should only "begranted upon a showing of good cause, such as a conflict of interest or other irreconcilabledifferences" (People v Sturdevant,74 AD3d 1491, 1494 [2010], lv denied 15 NY3d 810 [2010]). "[G]ood cause doesnot exist when defendants are guilty of delaying tactics or where, on the eve of trial,disagreements over trial strategy generate discord" (People v Linares, 2 NY3d 507, 511[*3][2004]; see People v Sturdevant, 74 AD3d at 1494).
Here, the record reflects that, following a motion brought by defense counsel seekingpermission to withdraw based on defendant's purported lack of trust in counsel's abilities, CountyCourt conducted a thorough inquiry on the record, at which point defendant expressly denied thathe was requesting that another attorney be assigned. Less than three weeks later and just a fewweeks before the scheduled trial date, defendant wrote to the court, indicating that he was nowrequesting new counsel, as well as a delay of the impending trial. Defendant's request appeared tobe based primarily on the fact that his current counsel had moved to withdraw and on variousdifferences in strategy between them. Under these circumstances and given that the concerns setforth in defendant's letter could have been raised when the parties previously appeared before thecourt on defense counsel's motion, we find no error in the court's refusal to revisit the issue.
Defendant's claim that his guilty plea was not knowing, intelligent or voluntary is notpreserved for appellate review, inasmuch as the record fails to indicate that he moved towithdraw the plea or vacate the judgment of conviction (see People v DeJesus, 96 AD3d 1295, 1295 [2012]; People v Leszczynski, 96 AD3d1162, 1162 [2012], lv denied 19 NY3d 998 [2012]). Moreover, the narrow exceptionto the preservation requirement does not apply as defendant did not "make any statements duringhis plea allocution that tended to negate a material element of the crime or otherwise cast doubtupon his guilt" (People vRichardson, 83 AD3d 1290, 1291 [2011], lv denied 17 NY3d 821 [2011]; see People v Carpenter, 93 AD3d950, 952 [2012], lv denied 19 NY3d 863 [2012]).
Defendant further contends that his negotiated prison sentence was harsh and excessive andshould be reduced in the interest of justice. Based upon our review of the record, we disagree.Defendant did not receive the maximum available prison term for the offense to which hepleaded guilty (see Penal Law § 70.70 [3] [b] [i]) and, in view of the allegationscontained in the indictment, defendant's criminal history and the lack of any mitigatingcircumstances, "we find no extraordinary circumstances nor any abuse of discretion warranting areduction of the sentence[ ] in the interest of justice" (People v Garren, 84 AD3d 1638, 1639 [2011], lv denied 17NY3d 816 [2011]; see People vElder, 89 AD3d 1278, 1279 [2011], lv denied 18 NY3d 923 [2012]).[FN2]
Finally, while defendant correctly argues that he qualifies as a second felony drugoffender—a subcategory of second felony offenders (see Penal Law§§ 70.06 [1] [a]; 70.70 [3] [b] [i])—inasmuch as defendant's uniform sentenceand commitment form accurately reflects the terms of his plea and the sentencing minutes (compare People v Vasavada, 93 AD3d893, 894 [2012], lv denied 19 NY3d 978 [2012]), we discern no reason to amendsuch form to refer to him as a second felony drug offender, rather than a second felonyoffender.[FN3][*4]
Peters, P.J., Lahtinen, Kavanagh and Egan Jr., JJ., concur.Ordered that the judgment is affirmed.
Footnote 1: Although defendant agreed towaive his right to appeal as part of the plea, the People concede, and we agree, that such waiveris unenforceable due to the absence of proof in the record that defendant was adequately apprisedof the ramifications thereof (see Peoplev Bradshaw, 18 NY3d 257, 264-266 [2011]; People v Burton, 93 AD3d 949, 949 [2012], lv denied 19NY3d 958 [2012]).
Footnote 2: With regard to defendant's claimthat his jail time credit was incorrectly calculated, we need only note that "the proper vehicle for[such] claim . . . is a CPLR article 78 proceeding, not a direct appeal" (People v Golgoski, 43 AD3d 551,553 [2007]).
Footnote 3: Notably, defendant has failed toarticulate any present legal or practical distinction between the two.