People v Mitchell

2013 NY Slip Op 08150 [112 AD3d 992]

December 5, 2013

Appellate Division, Third Department

As corrected through Wednesday, January 29, 2014

The People of the State of New York, Respondent, vNicholas G. Mitchell, Appellant.

—[*1]Teresa C. Mulliken, Harpersfield, for appellant.

Richard D. Northrup Jr., District Attorney, Delhi (John L. Hubbard of counsel), forrespondent.

Lahtinen, J. Appeal from a judgment of the County Court of Delaware County(Becker, J.), rendered December 19, 2011, convicting defendant upon his plea of guiltyof the crimes of criminal contempt in the first degree, aggravated harassment in thesecond degree and criminal contempt in the second degree.

After allegedly violating an order of protection, defendant was charged in anindictment with the crimes of criminal contempt in the first degree, aggravatedharassment in the second degree and criminal contempt in the second degree. CountyCourt gave notice of a trial date approximately three weeks in advance, and set forth inthe letter that the court would not accept a plea of guilty, except to the entire indictment,less than two weeks in advance of the scheduled trial. On the morning the trial was tocommence, defendant elected to plead guilty to the entire indictment, without a promiseas to sentence. The court continued his release while awaiting sentencing, but warnedhim that if he did not appear on the appearance date, he would be sentenced to11/3 to 4 years in prison. Defendant did not appear for sentencing,purportedly because of a medical condition that precluded travel. The court postponedsentencing and directed defense counsel to provide an affidavit of physical necessity forhis absence at the adjourned date, but defense counsel failed to provide the affidavit. Awarrant was issued and when defendant was ultimately produced, the court sentencedhim to 11/3 to 4 years in prison on the felony count, and one year in prisonon each of the misdemeanor counts, all to run [*2]concurrently. Defendant's motion to withdraw his plea wasdenied and he now appeals from the judgment of conviction.

Defendant initially contends that his plea was coerced by County Court's policyregarding plea bargains. However, defendant did not object to the parameters set forth inthe court's letter, there was no plea offered by the People during the pertinent two weeksthat would have been impacted by the court's policy, and defendant did not object to thepolicy at the time he pleaded to the charges. While we have indicated disfavor of "acourt's general policy of not permitting plea bargains based on circumstances unrelated tothe particular defendant" (People v Compton, 157 AD2d 903, 903 [1990], lvdenied 75 NY2d 918 [1990]), defendant did not preserve the issue for our review(see People v Powell, 81AD3d 1307, 1308 [2011], lv denied 17 NY3d 799 [2011]) and, in any event,failed to show that his plea was coerced or otherwise impacted by the court's policy(cf. People v Compton, 157 AD2d at 903-904).

Next, defendant argues that a medical condition prevented him from appearing forsentencing and he was entitled to an evidentiary hearing as to whether he willfullyviolated the plea under such circumstances. Here, there was no agreed-upon sentence aspart of the plea and, accordingly, County Court could have imposed the same sentenceeven if defendant had properly appeared for sentencing. Furthermore, "[t]he court wasnot required to conduct an evidentiary hearing to determine the veracity ofdefendant's excuses" (People vAlbergotti, 17 NY3d 748, 750 [2011] [emphasis added]; see People vOutley, 80 NY2d 702, 712-713 [1993]). County Court heard defendant and hiscounsel, reviewed medical records supplied to it and noted its own observations ofdefendant's mobility. Such an inquiry was sufficient for defendant to present his excuses,which the court chose not to credit (see People v Albergotti, 17 NY3d at 750).

County Court properly confirmed that defendant's guilty plea was knowing andvoluntary (see People vYoungblood, 107 AD3d 1159, 1160 [2013], lv denied 21 NY3d 1078[2013]; People v Ferro, 101AD3d 1243, 1244 [2012], lv denied 20 NY3d 1098 [2013]). Althoughduring his allocution defendant initially denied having called the victim, County Courtconducted the requisite further inquiry, and after defendant consulted with his counsel,he unequivocally stated that he called the victim and that he did so for the purpose ofputting the victim in reasonable fear of physical injury, with full knowledge that theorder of protection was in place (see People v Lopez, 71 NY2d 662, 666 [1988];People v Ferro, 101 AD3d at 1244; People v Edwards, 55 AD3d 1337, 1338 [2008], lvdenied 11 NY3d 924 [2009]). Defendant's remaining contentions, including hisclaim that County Court abused its discretion in denying his motion to withdraw his plea,have been considered and found to be without merit.

Rose, J.P., Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.