| People v McNamara |
| 2013 NY Slip Op 00873 [103 AD3d 1273] |
| February 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v David F. McNamara, Appellant. |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel),for respondent.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, A.J.),rendered October 25, 2011. The judgment convicted defendant, upon his plea of guilty,of criminal possession of a forged instrument in the second degree and criminal sale of acontrolled substance in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of criminal possession of a forged instrument in the second degree (Penal Law§ 170.25) and criminal sale of a controlled substance in the fourth degree (§220.34 [1]). Defendant concededly waived his right to appeal, which forecloses hispresent challenge to the severity of his sentence (see People v Hubert, 100 AD3d 1443, 1444 [2012]).
Defendant further contends that his federal constitutional rights were violated whenthe Cayuga County Probation Department conducted his presentence interview in theabsence of counsel and that his resulting statements should have therefore beensuppressed and stricken from the presentence report. Even assuming, arguendo, that thiscontention survives defendant's waiver of his right to appeal, we nevertheless reject it;the federal constitution does not entitle a defendant to the presence of counsel at thatstage of a criminal proceeding (see United States v Tisdale, 952 F2d 934,939-940 [1992]; United States v Jackson, 886 F2d 838, 844 [1989]; see alsoPeople v Cortijo, 291 AD2d 352, 352 [2002], lv denied 98 NY2d 674[2002]). In any event, defendant was sentenced in accordance with a plea agreement andsentencing promise that preceded both the presentence interview and the preparation ofthe presentence report. Thus, any error in the court's refusal to suppress his statementstherein is harmless (see People vWilliamson, 72 AD3d 1339, 1339 [2010], lv denied 15 NY3d 779[2010]; People v Vaughan,20 AD3d 940, 941-942 [2005], lv denied 5 NY3d 857 [2005]; People vVasquez, 256 AD2d 83, 83 [1998], lv denied 93 NY2d 880 [1999];People v Tavarez, 235 AD2d 278, 278 [1997]). Present—Smith, J.P.,Peradotto, Lindley, Sconiers and Valentino, JJ.