| People v Davis-Ivery |
| 2009 NY Slip Op 01363 [59 AD3d 853] |
| February 26, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v FrancesDavis-Ivery, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Karin Intermill of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered December 11, 2007, convicting defendant upon her plea of guilty of the crimes of grandlarceny in the fourth degree and tampering with physical evidence.
Pursuant to a negotiated agreement, defendant entered a plea of guilty to the crimes of grandlarceny in the fourth degree and tampering with physical evidence in full satisfaction of afour-count indictment also charging her with assault in the second degree and petit larceny. Thecharges arose out of an incident at a grocery store in December 2006 in which defendant, actingin concert with her husband, removed a credit card from the victim's purse. According to theindictment, defendant caused physical injury to the grocery store security guard who attemptedto prevent her from leaving the store, and she hid the stolen credit card behind a display offirewood outside the store. County Court sentenced defendant as a second felony offender toconcurrent prison terms of 2 to 4 years. Defendant now appeals and we affirm.
Defendant's challenge to the factual sufficiency of the plea allocution is unpreserved as sheneither moved to withdraw her guilty plea nor moved to vacate the judgment of conviction(see People v Lopez, 71 NY2d 662, 665 [1988]; People v Sorey, 55 AD3d 1063 [2008]; People v Zabele, 53 AD3d 685,686 [2008]; People v Ocasio, 265 AD2d 675, 676 [1999]). Further, as discussed below,defendant did not make any statement during her plea allocution or during the course of any ofthe proceedings in County Court that cast significant doubt as to her guilt or the [*2]voluntariness of her guilty plea (see People v Lopez, 71NY2d at 665; People v Sinclair, 48AD3d 974, 975 [2008]; People vRose, 41 AD3d 1033, 1034 [2007], lv denied 9 NY3d 926 [2007]; People v Nugent, 31 AD3d 976,977 [2006], lv denied 8 NY3d 925 [2007]).
In her plea, defendant admitted to stealing a credit card from the pocketbook of anothershopper while in a grocery store and then attempting to conceal that card behind a store displaywhile being detained by store security personnel. Defendant initially agreed to plead guilty toassault in the second degree—a class D felony—and grand larceny in the fourthdegree—a class E felony—and, in her initial plea allocution, admitted not only tostealing the credit card, but also that she "dropped the card" as she struggled with store securitypersonnel who had attempted to detain her as she was leaving the store. However, as a result ofdefendant's refusal to acknowledge that the security officer had been injured during the struggle,County Court refused to accept her guilty plea to the crime of assault in the second degree. In itsstead, the court ultimately agreed to allow defendant to plead guilty to the less serious charge oftampering with physical evidence—a class E felony. In that regard, defendant, in responseto a question put to her by the court, acknowledged attempting "to conceal, that is, hide a stolencredit card by placing it behind a display of wooden logs" after store personnel had detained her.
At no time during the proceedings before County Court did defendant raise the issue that shenow puts forth on this appeal. In the three months that passed between the time she entered herguilty plea and sentence was imposed, neither defendant nor her counsel ever maintained thatdefendant was innocent of the crimes to which she pleaded guilty or that the plea wasinvoluntarily or unknowingly rendered. The content of the plea allocution was sparse and ideallycould have been more detailed. However, when taken as a whole, the plea as renderedconstituted an admission to all of the elements of the crimes for which defendant standsconvicted and was given after a full and fair explanation of all her constitutional rights.Defendant, while represented by counsel, admitted to stealing a credit card and, while beingdetained by store security personnel, dropping it behind a store display in an attempt to concealit.
We disagree with defendant's claim that she only admitted to an attempt to commit the crimeof tampering with physical evidence. As relevant to this appeal, a person is guilty of tamperingwith physical evidence when, "[b]elieving that certain physical evidence is about to be producedor used in an official proceeding or a prospective official proceeding, and intending to preventsuch production or use, he [or she] suppresses it by any act of concealment, alteration ordestruction, or by employing force, intimidation or deception against any person" (Penal Law§ 215.40 [2] [emphasis added]; see People v Wright, 13 AD3d 736, 737-738 [2004], lvdenied 4 NY3d 837 [2005]; People v Higgins, 299 AD2d 841, 843 [2002], lvdenied 99 NY2d 614 [2003]). Defendant did not simply admit to attempting to conceal thestolen credit card; rather, in response to County Court's inquiry, she admitted to actuallyconcealing the item behind the store display and doing so with an intent to hide it. The crime oftampering with physical evidence was committed when this act of concealment was committedby defendant with the requisite intent and is not transformed into an attempt to commit such acrime merely because the evidence sought to be concealed was later recovered from theplace where it had been hidden (seegenerally People v Bellamy, 34 AD3d 937, 938 [2006], lv denied 8 NY3d 843[2007]; People v Sandy, 236 AD2d 104, 114 [1997], lv denied 91 NY2d 977[1998]).
Finally, defendant is no stranger to the criminal justice system and, given the nature of [*3]her participation in the exchanges at the time of her plea, was wellaware of the implications necessarily involved in pleading guilty. In that regard, it should benoted that the plea was entered just as hearings were to be held on her pretrial motions and a datefor her trial was to be set. Not only has defendant never offered an explanation for why shewaited so long to raise this issue regarding the plea, but the record as it now exists does notallow us to assess the full extent to which the People have been prejudiced by defendant's delayin making this claim and whether their ability to present a case against defendant has beencompromised. For these reasons and, more importantly, because there is absolutely no questionas to her guilt or the voluntariness of her plea, her claim has not been preserved (see People vLopez, 71 NY2d at 665 [1988]; People v Sorey, 55 AD3d at 1063) and her judgmentof conviction is affirmed.
Cardona, P.J., Rose and Stein, JJ., concur. Ordered that the judgment is affirmed.