| People v Cavallaro |
| 2014 NY Slip Op 08671 [123 AD3d 1221] |
| December 11, 2014 |
| Appellate Division, Third Department |
[*1](December 11, 2014)
| The People of the State of New York, Respondent, vMichael J. Cavallaro, Appellant. |
Kevin M. Colwell, Albany, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Clark, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered December 23, 2010, convicting defendant upon his plea of guilty of thecrime of criminal possession of a controlled substance in the third degree.
While under investigation by the Ulster Regional Gang Enforcement NarcoticsTeam, defendant sold ecstasy to a confidential informant in March 2009. As part of acontrolled buy operation, defendant sold cocaine to a second confidential informant atdefendant's residence in January 2010. Investigators then obtained a search warrant fordefendant's residence, where they recovered a handgun and various illegal drugs.Thereafter, defendant was charged in an indictment with various offenses arising out ofthe two drug sales and his possession of the items seized at his residence. Following ahearing, County Court rejected defendant's efforts to suppress physical evidencerecovered in the search and statements that he made to police after his arrest. Defendantthen pleaded guilty to one count of criminal possession of a controlled substance in thethird degree in satisfaction of the indictment and admitted to possessing cocaine at hisresidence. County Court made no sentencing commitment as part of the plea arrangementand ultimately sentenced defendant, as a second felony offender, to a 10-year prison termfollowed by three years of postrelease supervision. Defendant appeals, and we nowaffirm.
Defendant initially contends that probable cause did not support the issuance of thesearch warrant because a misstatement in the search warrant application, as to when theJanuary [*2]2010 controlled buy occurred, called thereliability of the confidential informant into question. County Court credited, however,the testimony of an investigator that the misstatement in the application was atypographical error that was unconnected to any information provided by the confidentialinformant. Inasmuch as search warrant applications will "not be read in a hypertechnicalmanner as if they were entries in an essay contest," the factual error contained within theapplication did not impair the warrant's validity (People v Hanlon, 36 NY2d 549,559 [1975]; see People v Bowers, 92 AD2d 669, 670 [1983]; People vFinch, 57 AD2d 641, 642 [1977]). To the extent that defendant otherwise questionsthe reliability of the confidential informant, evidence of the "controlled buy of drugs atdefendant's apartment only days prior to the issuance of the warrant satisfied thereliability prong of the Aguilar-Spinelli test" (People v Morton, 288AD2d 557, 558 [2001], lv denied 97 NY2d 758 [2002], cert denied 537US 860 [2002]; see People vVargas, 72 AD3d 1114, 1115-1116 [2010], lv denied 15 NY3d 758[2010]). County Court thus properly found the search warrant to be valid.
County Court also acted properly in declining to suppress the statements thatdefendant made to police. Defendant was promptly transported to the police station afterhis arrest and was advised of his Miranda rights before any questioning began.The investigator then told defendant, not inaccurately, that the handgun and drugsrecovered in his apartment could have belonged to anyone who lived there, and that hislive-in girlfriend would face criminal charges if no one took responsibility for possessingthose items. Immediately thereafter, defendant admitted that the items were his.Defendant argues that the threat to arrest his girlfriend was coercive, but police are free"to capitalize on a defendant's sense of shame or reluctance to involve his family in apending investigation absent circumstances which create a substantial risk that adefendant might falsely incriminate himself" (People v Johnson, 177 AD2d 791,792 [1991] [citation omitted]; accord People v Mateo, 2 NY3d 383, 415-416[2004], cert denied 542 US 946 [2004]; see People v Jackson, 105 AD3d 866, 869 [2013], lvdenied 21 NY3d 1016 [2013]). Thus, under the totality of the circumstances present,we are satisfied that the People met their burden of showing that defendant's statementswere voluntary (see People v Jackson, 105 AD3d at 869; People vSetless, 213 AD2d 900, 901 [1995], lv denied 86 NY2d 740 [1995]; compare People v Thomas, 22NY3d 629, 641-642 [2014]).
Defendant's contention that he was denied the effective assistance of counsel ispreserved for review via his motion to withdraw his guilty plea and is properly before usinsofar as it implicates the voluntariness of that plea (see People v Howard, 119 AD3d 1090, 1091 [2014], lvdenied 24 NY3d 961 [2014]). However, his specific claims of ineffective assistanceare notably lacking in record support. Regardless, "[i]n the context of a guilty plea, adefendant has been afforded meaningful representation when he or she receives anadvantageous plea and nothing in the record casts doubt on the apparent effectiveness ofcounsel" (People v Sylvan,108 AD3d 869, 870 [2013], lv denied 22 NY3d 1091 [2014] [internalquotation marks and citations omitted]; accord People v Wren, 119 AD3d 1291, 1292 [2014]). Theseveral attorneys who represented defendant over the course of this action entered into anappropriate stipulation in lieu of motions with the People, made pretrial motions, ablycross-examined witnesses at the suppression hearing, and then negotiated a plea thatsignificantly reduced the sentencing exposure that defendant would have faced had hebeen convicted of all counts in the indictment. We accordingly conclude that defendantreceived meaningful representation (see People v Wren, 119 AD3d at 1292).
Finally, the sentence imposed was not harsh and excessive, particularly in light ofdefendant's extensive criminal background (see People v Long, 117 AD3d 1326, 1327 [2014], lvdenied 24 NY3d 1003 [2014]). Defendant further contends that County Courtimposed the sentence in retaliation for his decision to engage in preplea motion practicebut, to the extent [*3]that argument is properly before us,it is unsupported by the record (see People v Rorris, 52 AD3d 869, 871 [2008], lvdenied 11 NY3d 741 [2008]).
Defendant's remaining arguments have been examined and are found to be lacking inmerit.
McCarthy, J.P., Egan Jr., Lynch and Devine, JJ., concur. Ordered that the judgmentis affirmed.