| People v Kaetzel |
| 2014 NY Slip Op 03301 [117 AD3d 1187] |
| May 8, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vPhillip Kaetzel, Appellant. |
John P.M. Wappett, Public Defender, Lake George (Bryan M. Racino of counsel),for appellant.
Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.
Stein, J. Appeal from a judgment of the County Court of Warren County (Hall Jr.,J.), rendered December 7, 2011, convicting defendant upon his plea of guilty of the crimeof robbery in the second degree.
In October 2010, in satisfaction of a two-count indictment, defendant pleaded guiltyto robbery in the second degree and waived his right to appeal. Under the terms of theplea agreement, sentencing was to be adjourned, defendant was to be placed on interimprobation for one year and, if he successfully completed a drug treatment program, thecharge would be reduced to robbery in the third degree and defendant would besentenced to time served and five years of probation. However, if he did not successfullycomplete the program, defendant's interim probation would be discontinued and hewould be sentenced to a prison term of up to 15 years, to be followed by five years ofpostrelease supervision.
While on interim probation, defendant participated in various types of treatment.However, County Court was provided with information on three separate occasions thatdefendant had violated the conditions of his interim probation, which ultimately resultedin his removal from the drug treatment program in which he had been enrolled.Consequently, County Court sentenced defendant to 3
We reject defendant's initial claim that he was denied the right to counsel. Adefendant is guaranteed the right to be represented by counsel in a criminal action underboth the US and NY Constitutions (see US Const 6th, 14th Amends; NY Const,art I, § 6; see also Gideon v Wainwright, 372 US 335 [1963]). Suchright "guarantee[s] the assistance of counsel at any 'critical stage' of the prosecution,where counsel['s] absence might prejudice due process rights" (People v Garcia,92 NY2d 726, 730 [1999], cert denied 528 US 845 [1999]), including anarraignment and bail hearing (see Hurrell-Harring v State of New York, 15 NY3d 8, 20[2010]; People v Chapman, 69 NY2d 497, 500 [1987]). However, wherecounsel's nonrepresentation at a critical stage does not affect the ultimate adjudication, itis not a ground for reversing a defendant's conviction (see Hurrell-Harring v State ofNew York, 15 NY3d at 21).[FN1]
Here, County Court reviewed reports on three occasions indicating that defendanthad violated the conditions of his interim probation and defendant initially appearedbefore the court without counsel with respect to each report. In each instance, theproceeding was abbreviated, defendant engaged in virtually no discussion and nothingsubstantial was accomplished other than the court informing defendant of the allegedviolation and remanding him to jail (see generally People v Garcia, 92 NY2d at730).[FN2]
Each of these appearances was followed within a relatively short period of time by anappearance at which counsel was present.[FN3]
Defendant was represented by counsel at the outset of the criminal action and, mostimportantly, during the course of the plea discussions that resulted in him being placedon interim probation for one year. Notably, the significant events that impacteddefendant's ultimate sentence—such as defendant's admission to violating theconditions of his interim probation and the actual sentencing—occurred whendefendant was represented by counsel. In short, even if the appearances in whichdefendant was unrepresented constituted critical stages of the underlying criminal action,his counsel's absence therefrom did not affect the final adjudication of defendant's case.Thus, such absence did not deprive defendant of his constitutional right to counsel underthese circumstances.
We are similarly unpersuaded by defendant's challenge to his sentence. Defendant'sargument that his sentence was illegal because a split sentence consisting of a term ofimprisonment together with a period of probation was not permissible upon hisconviction of a [*3]class C violent felony (seePenal Law §§ 60.01 [2] [a] [i]; 60.05 [4]; 70.02 [1] [b]) erroneouslyassumes that County Court imposed a period of probation, rather than a period ofpostrelease supervision, in addition to defendant's term of imprisonment. Under thecircumstances here, we conclude that the record unquestionably reflects that CountyCourt misspoke when it referred to probation, as opposed to postrelease supervision, atthe moment it pronounced sentence (see generally People v Feliciano, 108 AD3d 880, 881 n 1[2013], lv denied 22 NY3d 1040 [2013]; People v Neal, 41 AD3d 971, 972 [2007]; compare People v Haynes, 104AD3d 1142, 1144-1145 [2013], lv denied 22 NY3d 1156 [2014]). Indeed,the court's intent to impose a legally required period of postrelease supervision wasindicated at all other times sentencing was discussed, including the initial pleaproceeding, the appearance at which defendant admitted to violating the terms of hisinterim probation, throughout the sentencing proceeding—before the actualimposition of the sentence—and when County Court denied defendant'spostsentencing request for credit for time spent on interim probation (compare Peoplev Bolivar, 118 AD3d 91, 92-94 [2014]). Moreover, the uniform sentence and commitment order reflects the impositionof a five-year period of postrelease supervision, as opposed to probation. To be sure,defendant correctly argues that a notation on a commitment order regarding postreleasesupervision cannot serve to impose this component of the sentence where the sentencingcourt was silent in regard thereto (see People v Sparber, 10 NY3d 457, 470-471 [2008]; People v Duncan, 42 AD3d470, 471 [2007], lv denied 9 NY3d 961 [2007]). However, where, as here,the court pronounced the imposition of postrelease supervision—albeit mistakenlyreferring to it as probation—and the sentence is both authorized for robbery in thesecond degree (see Penal Law §§ 70.00 [6]; 70.02 [3] [b];70.45 [2]; compare People vDolder, 111 AD3d 985, 985 [2013]) and consistent with the terms of defendant'splea agreement, no corrective action is necessary.[FN4]
Defendant's remaining arguments have been considered and found to be lacking inmerit.
Peters, P.J., Rose and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Notably, defendant'scounsel stated at oral argument that defendant was not seeking to withdraw his plea orreversal of the judgment of conviction.
Footnote 2:County Court wasauthorized to remand defendant to jail because it had reasonable cause to believe that hehad violated the conditions of his interim probation (see CPL 216.05 [9] [a];530.60 [1]).
Footnote 3:We are troubled byapparent lapses in the record which result in our inability to ascertain exactly how longdefendant was incarcerated after he appeared without counsel. However, various entriesthat do exist in the record indicate that counsel was informed of defendant'sincarcerations in a reasonably prompt manner.
Footnote 4:Even if we were to agreewith defendant's argument, the appropriate remedy would be remittal for pronouncementof postrelease supervision. We could not, as defendant requests, merely eliminate theterm of postrelease supervision (see People v Sparber, 10 NY3d at 471; seealso Correction Law § 601-d), as that would result in an illegal sentence(see Penal Law § 70.45 [2] [f]).