| People v Hinckley |
| 2008 NY Slip Op 03737 [50 AD3d 1466] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Rachael L.Hinckley, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Brian D. Dennis of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, J.), rendered April28, 2006. The judgment convicted defendant, upon her plea of guilty, of criminal sale of acontrolled substance in the third degree (two counts), sale of an imitation controlled substance(three counts) and grand larceny in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reversing that part convicting defendant of criminal sale of a controlled substance in the thirddegree under count two of the indictment and vacating the plea with respect to that count of theindictment and as modified the judgment is affirmed, and the matter is remitted to OntarioCounty Court for further proceedings on count two of the indictment in accordance with thefollowing memorandum: Defendant appeals from a judgment convicting her, upon a plea ofguilty, of grand larceny in the fourth degree (Penal Law § 155.30 [1]), two counts ofcriminal sale of a controlled substance in the third degree (§ 220.39 [1]), and three countsof sale of an imitation controlled substance (Public Health Law § 3383 [2]). County Courtproperly refused to suppress defendant's statements to the police. The record of the suppressionhearing supports the court's conclusion that the waiver by defendant of her Miranda rightswas knowing, voluntary and intelligent and, although defendant contends that she wasintoxicated, there is no evidence that she " 'was intoxicated to the degree of mania, or of beingunable to understand the meaning of [her] statements' " (People v Schompert, 19 NY2d300, 305 [1967], cert denied 389 US 874 [1967]; see People v Lake, 45 AD3d 1409 [2007]; People v Carpenter, 13 AD3d1193 [2004], lv denied 4 NY3d 797 [2005]).
By failing to move to withdraw the plea or to vacate the judgment of conviction, defendanthas failed to preserve for our review her challenge to the factual sufficiency of the plea allocutionwith respect to the two counts of criminal sale of a controlled substance in the third degree(see People v Lopez, 71 NY2d 662, 665 [1988]; People v Birmingham, 46 AD3d 1469 [2007]). We agree withdefendant, however, that her recitation of the facts underlying the second of those two counts castsignificant doubt upon her guilt and thus that her plea with respect to that count falls within thenarrow exception to the preservation requirement (see Lopez, 71 NY2d at 666). Wefurther conclude that the court failed to conduct the requisite inquiry with respect to that count"to ensure that defendant's guilty plea [was] knowing and voluntary" (id.). We thereforemodify the judgment accordingly, and we remit the matter to County Court for furtherproceedings on [*2]count two of the indictment. Inasmuch asdefendant's plea was entered upon a negotiated agreement, we note that, in the event thatdefendant does not enter a plea of guilty to criminal possession of a controlled substance in thethird degree upon remittal, the court "should entertain a motion by the People, should the Peoplebe so disposed, to vacate the plea and set aside the conviction in its entirety" (People vIrwin, 166 AD2d 924, 925 [1990]; cf. People v Hall, 50 AD3d 1467 [2008]).
Defendant failed to preserve for our review her further contention with respect to the grandlarceny count, to which she entered an Alford plea (see CPL 470.05 [2]), and wedecline to exercise our power to review that contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]). We conclude that the negotiated sentence imposed oncount one is not unduly harsh or severe.
Finally, we note that the certificate of conviction incorrectly reflects that defendant wasconvicted of three counts of possession of an imitation controlled substance, and it musttherefore be amended to reflect that she was convicted of three counts of sale of an imitationcontrolled substance (see generallyPeople v Saxton, 32 AD3d 1286 [2006]). Present—Scudder, P.J., Hurlbutt, Lunn,Pine and Gorski, JJ.