| People v Williford |
| 2015 NY Slip Op 00571 [124 AD3d 1076] |
| January 22, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Paul Williford, Appellant. |
Joseph Nalli, Fort Plain, for appellant.
Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Schenectady County(Milano, J.), rendered September 5, 2013, convicting defendant upon his plea of guilty ofthe crime of attempted burglary in the first degree.
In satisfaction of a 16-count indictment, defendant pleaded guilty to one count ofattempted burglary in the first degree and waived his right to appeal. Pursuant to the pleaagreement, County Court sentenced defendant as a second violent felony offender to aprison term of nine years, with five years of postrelease supervision. Defendantappeals.
Defendant challenges the voluntariness of both his plea and appeal waiver. At theoutset of the plea proceeding, County Court stated the conditions of the guilty plea,including defendant's waiver of his right to appeal. The record shows that defendantexecuted a written appeal waiver in open court with counsel present. The waiver, in part,states that defendant has a right to appeal from a conviction following a plea andsentence, but as part of the plea agreement, he was waiving that right to appeal. Whiledefendant acknowledged that he was waiving "any and all rights and remedies. . . in connection with this case," this acknowledgment precededdefendant's review of the appeal waiver. At no point did the court distinguish on therecord the right to appeal from those rights forfeited upon a plea of guilty (see People v Lopez, 6 NY3d248, 256 [2006]). Nor was there any colloquy between the court, defendant andcounsel concerning the appeal waiver. As a result, there is no record confirmation thatdefendant actually understood the implications of the appeal [*2]waiver (see People v Bradshaw, 18 NY3d 257, 259-261 [2011];People v Callahan, 80 NY2d 273, 283 [1992]). Accordingly, we hold that theappeal waiver is unenforceable.
Having moved to withdraw his plea, defendant's challenge to the sufficiency of theallocution, claimed misunderstanding as to the plea terms and contentions of coercion arepreserved for review (see Peoplev Mydosh, 117 AD3d 1195, 1196 [2014], lv denied 24 NY3d 963[2014]; People v Waters, 80AD3d 1002, 1003 [2011], lv denied 16 NY3d 864 [2011]; compare People v Ross, 117AD3d 1342, 1342-1343 [2014]). During the allocution, County Court used thewords "building" and "dwelling" interchangeably, despite the fact that burglary in thefirst degree requires entry into a dwelling (see Penal Law § 140.30),as opposed to entry into a building (see Penal Law §§ 140.20,140.25). In so doing, the court specified the actual address, and defendant admitted hisintentions of stealing a weapon from the resident. Since a dwelling means a buildingusually occupied by a person lodging overnight (see Penal Law§ 140.00), the use of both terms did not negate an element of the chargedoffense (see People vSeeber, 4 NY3d 780, 781 [2005]). Defendant entered the plea in consultationwith counsel, and there is nothing in this record to call into question his admitted guilt.As such, we reject defendant's contention that the allocution was insufficient (see People v Seeber, 4 NY3d780, 781 [2005]).
As for defendant's professed confusion over the proposed sentence cap, the recordshows that defendant rejected plea offers on July 11, 2012 and October 4, 2012 thatincluded a proposed cap. During the October 25, 2012 plea proceeding, County Courtexpressly informed defendant that the maximum sentence for a plea to a charge ofattempted burglary in the first degree, as a second violent felony offender, was 15 years,but that the offer was to cap the sentence at 10 years. When defendant continued toexpress uncertainty, the court and defense counsel engaged in an extensive explanation,specifying that the proposed determinate sentence would be within a range of 7 to 10years, subject to the court's discretion. Defendant confirmed that he understood.Defendant's further claim that he was coerced into pleading guilty is belied by the record.He admitted that his plea was made voluntarily and without coercion, and that he wassatisfied with counsel's representation, and we perceive nothing in this record to suggestotherwise. Accordingly, we conclude that defendant's plea was knowingly, intelligentlyand voluntarily made (seePeople v Oakes, 99 AD3d 1115, 1116 [2012], lv denied 20 NY3d 1013[2013]).
Next, defendant maintains that County Court erred in denying his motion to suppressitems seized from his vehicle, which included the victim's checkbook, contending that hewas under the influence of drugs and incapable of consenting to the search. This claimmay be raised following a guilty plea (see CPL 710.70 [2]). The People bear aheavy burden to establish that the consent was freely and voluntarily given based on thetotality of the circumstances (see People v Gonzalez, 39 NY2d 122, 128-129[1976]; People v Dobson, 285 AD2d 737, 738 [2001], lv denied 97NY2d 655 [2001]). The detective who testified at the Mapp hearing stated thatdefendant was handcuffed to a desk during the interview and was read hisMiranda warnings. Defendant verbally consented to having his vehicle searchedand then, at the detective's request, signed the consent form. Defendant was indisputablyin custody at this point and the detective conceded that he neither read the consent formto defendant nor advised him of his right to refuse to consent. These factors, however, donot preclude a finding of voluntary consent (see People v Gonzalez, 39 NY2d at128). The detective acknowledged that defendant "seemed to be coming off of whateverhe was on," but also explained that defendant was "pretty fluent in what he was saying"and "definitely not out of it to the point where he didn't understand." After watching avideo of the interview, County Court determined that defendant was coherent and thatthe manner in which the detective asked for defendant's permission to search his vehiclewas not coercive (see People v Adams, 26 NY2d 129, 137-138 [1970], cert[*3]denied 399 US 931 [1970]; People v Williams, 40 AD3d1364, 1365 [2007], lv denied 9 NY3d 927 [2007]; People v Dlugos,237 AD2d 754, 756 [1997], lv denied 89 NY2d 1091 [1997]). Viewed in totality,and according deference to the factual findings of the suppression court, we find thatCounty Court did not abuse its discretion in finding that the consent was freelygiven.
Finally, given defendant's extensive criminal history and the fact that his sentencewas actually less than the sentence agreed to as part of the plea bargain, the sentence wasnot an abuse of discretion and we do not find extraordinary circumstances warranting areduction thereof (see People vUrbina, 1 AD3d 717, 718 [2003], lv denied 1 NY3d 602 [2004]).
Peters, P.J., Lahtinen, Garry and Rose, JJ., concur. Ordered that the judgment isaffirmed.