| People v Miller |
| 2018 NY Slip Op 04394 [162 AD3d 1231] |
| June 14, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Daniel L. Miller, Appellant. |
John A. Cirando, Syracuse, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (John Thweatt of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Chemung County (Rich Jr., J.),rendered November 5, 2015, convicting defendant upon his plea of guilty of the crime of drivingwhile intoxicated.
On December 24, 2014, State Police were summoned to the parking lot of the Dandy MiniMart in the Town of Catlin, Chemung County for a report of an unresponsive individual in aparked vehicle. Upon arrival, a state trooper discovered defendant asleep behind the wheel of apickup truck. After knocking on the truck's window, the trooper opened the driver's door, shookdefendant awake and detected, among other things, the odor of an alcoholic beverage. Defendantsubsequently failed a series of standard field sobriety tests and he was thereafter arrested andcharged with multiple counts of driving while intoxicated. Defendant was arraigned andsubsequently waived his right to a preliminary hearing. In February 2015, defendant was indictedand charged with aggravated driving while intoxicated and two counts of felony driving whileintoxicated. Defendant thereafter filed an omnibus motion seeking to, among other things,dismiss the indictment on the ground that he was denied the right to counsel when he executedhis written waiver of preliminary hearing. County Court denied the motion, and defendantsubsequently pleaded guilty to one count of felony driving while intoxicated. He was thereaftersentenced, in accordance with his plea agreement, to a prison term of 1 to 3 years. Defendantnow appeals.
We affirm. Defendant's claims that his guilty plea was not entered knowingly, [*2]voluntarily and intelligently and that he was denied the effectiveassistance of counsel, impacting the voluntariness of his guilty plea, were not preserved for ourreview because defendant failed to make an appropriate postallocution motion to withdraw hisplea (see CPL 220.60 [3]; Peoplev Evans, 159 AD3d 1226, 1227 [2018]; People v Hankerson, 147 AD3d 1153, 1153 [2017], lvdenied 29 NY3d 998 [2017]).[FN1] With regard to defendant's plea, however, wenote that defendant did make a statement at sentencing that cast doubt upon his guilt and,therefore, the narrow exception to the preservation requirement was triggered imposing a dutyupon County Court to conduct a further inquiry to ensure that defendant's guilty plea wasknowing, intelligent and voluntary (see People v Lopez, 71 NY2d 662, 666 [1988]; People v Chin, 160 AD3d 1038,1039 [2018]; People v Gresham,151 AD3d 1175, 1178 [2017]). Where, as here, no further inquiry of defendant was made atsentencing, defendant may on appeal challenge the sufficiency of his plea allocution, but thevalidity of same will be upheld so long as the record affirmatively establishes that defendant"entered his plea understandingly and voluntarily" (People v Conceicao, 26 NY3d 375, 383-384 [2015] [internalquotation marks and citation omitted]; see People v Lopez, 71 NY2d at 666).
The record reveals that, on the morning of defendant's scheduled jury trial, a conversationensued between County Court, the prosecutor, defendant and defendant's counsel with respect toa possible plea bargain. County Court granted defendant's request for a brief recess and, afterfurther consultation with his attorney, defendant agreed to enter into a plea agreement wherebyhe would plead guilty to one count of felony driving while intoxicated in satisfaction of theindictment and receive a prison term of 1 to 3 years. During the ensuing plea colloquy, CountyCourt advised defendant in detail of the rights that he was forfeiting by entering into the plea,including, among others, the right to a jury trial, the presumption of innocence, the right againstself-incrimination, the right to confront his accusers and the right to present a defense. Defendantaffirmatively indicated that he understood the rights that he was forgoing, that he had not beenthreatened in any manner prior to entering his plea and that he had been provided sufficient timeto discuss the consequences thereof with his attorney.
Defendant then admitted that, on December 24, 2014, he had a shot of Jack Daniels and abeer at a hotel in the Town of Bath, Steuben County, then drove to the Town of Corning, SteubenCounty to see a friend. He purchased a bottle of vodka and a bottle of Kahlua at a liquor store,drove to an access road near the Dandy Mini Mart in Catlin, parked, drank half of the bottle ofvodka and then moved his truck into the parking lot of the Dandy Mini Mart where he "passedout." Although defendant made a statement at sentencing wherein he rehashed the merits of hisprior motions and argued that he was, in essence, prevented from presenting an adequate defensein order to prove his innocence, our review of the record confirms that defendant was fully awareand understood the consequences of taking a plea versus proceeding to trial. Defendant activelyparticipated in the relevant proceedings before County Court, he was aware of the terms of theplea agreement and the sentence to be imposed, including that he was receiving less than themaximum sentence allowable by law, and he indicated that he had sufficient time to consult hisattorney and, thereafter, freely elected to forgo the rights to which he was entitled and made "aknowing, voluntary and intelligent choice [to plead guilty] among alternative courses of action"(People v Conceicao, 26 NY3d at 382; see People v Smith, 155 [*3]AD3d 1244, 1245 [2017]; People v Rich, 140 AD3d 1407, 1407 [2016], lv denied 28NY3d 936 [2016]).
Defendant's claim that he was improperly allowed to proceed pro se at the time that heentered his guilty plea is without merit (see People v Flynn, 92 AD3d 1148, 1150 [2012], lv denied19 NY3d 996 [2012]). While on the morning of the scheduled trial defendant did request theopportunity to proceed pro se, County Court appropriately informed him that it would need to gothrough a "detailed colloquy" with him before it could rule on his request. Before any suchinquiry or ruling could occur, plea bargain negotiations then ensued, resulting in defendant'sacceptance of a plea agreement, while represented by his attorney.
Defendant's claims that his right to counsel was violated when he executed a waiver ofpreliminary hearing outside the presence of counsel[FN2] and that the People violated his discovery rightsby failing to preserve certain surveillance video from the Dandy Mini Mart were forfeited by hisguilty plea (see People v Hansen, 95 NY2d 227, 230-233 [2000]; People v Flynn,92 AD3d at 1150 [2012]; People vTerenzi, 57 AD3d 1228, 1229 [2008], lv denied 12 NY3d 822 [2009]; Peoplev Fagan, 53 AD3d at 984; see alsoPeople v Rutigliano, 159 AD3d 1280, 1280 [2018]; People v Trombley, 91 AD3d 1197, 1201 [2012], lv denied21 NY3d 914 [2013]). Finally, given that the sentence imposed was agreed to by defendant aspart of his negotiated plea, his extensive criminal history—which includes, among his 49total criminal convictions, seven felonies and six prior convictions for driving whileintoxicated—and the fact that the sentence imposed was less than the maximum allowableby law (see Penal Law § 70.00 [2] [e]), we find no abuse of discretion orextraordinary circumstances warranting a reduction of defendant's sentence in the interest ofjustice (see People v Capone, 160AD3d 1221, 1221 [2018]; People vFlanders, 110 AD3d 1112, 1113 [2013]).
Garry, P.J., Lynch, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isaffirmed, and matter remitted to the County Court of Chemung County for further proceedings pursuant to CPL 460.50 (5).
Footnote 1:To the extent that the balance ofdefendant's ineffective assistance of counsel claim was not forfeited by his guilty plea, it reliesupon matters outside the record that are more appropriately the subject of a motion to vacatepursuant to CPL article 440 (see Peoplev White, 153 AD3d 1041, 1042 [2017]).
Footnote 2:In any event, were we to reviewdefendant's claim, we would find it to be without merit. Defendant executed the written waiver ofthe preliminary hearing after consulting with a nonattorney investigator from the PublicDefender's office. Assuming, without deciding, that defendant, by pleading guilty, did not forfeithis right to now challenge the waiver, and that it was ineffective because it was signed bydefendant without consulting an attorney, then, in that event, defendant's right to a preliminaryhearing was violated, but the remedy for this violation would have been his release from custody,not dismissal of the charges (see CPL 180.80; People v Fagan, 53 AD3d 983, 984 [2008]). Furthermore, any errorin this regard was rendered harmless by the subsequent action of the grand jury in returning anindictment against defendant and his subsequent plea of guilty to one count of felony drivingwhile intoxicated with an agreed-upon sentence of incarceration for which defendant was entitledto credit for all time served prior to his plea (see People v Wicks, 76 NY2d 128, 133[1990]; People ex rel. Hirschberg v Close, 1 NY2d 258, 260-261 [1956]; cf. People v Wardlaw, 6 NY3d556, 559 [2006]; People vDamphier, 51 AD3d 1146, 1147 [2008], lv denied 11 NY3d 787 [2008];compare People v Hodge, 53 NY2d 313, 319-321 [1981]).