| People v Pitcher |
| 2015 NY Slip Op 02596 [126 AD3d 1471] |
| March 27, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRichard Pitcher, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.),rendered September 26, 2011. The judgment convicted defendant, upon his plea ofguilty, of burglary in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of burglary in the first degree (Penal Law § 140.30 [2]). Initially, weagree with defendant that his waiver of the right to appeal was not valid (see People v Trinidad-Ayala,114 AD3d 1229, 1229 [2014], lv denied 23 NY3d 1044 [2014]). Defendantfailed to preserve for our review, however, his challenge to the factual sufficiency of theplea colloquy (see People v Lopez, 71 NY2d 662, 665 [1988]; People v Spears, 106 AD3d1534, 1535 [2013], affd 24 NY3d 1057 [2014]). Contrary to defendant'scontention, this case does not fall within the rare exception to the preservationrequirement set forth in Lopez because nothing in the plea allocution calls intoquestion the voluntariness of the plea or casts "significant doubt" upon his guilt(id. at 666; see People vLewandowski, 82 AD3d 1602, 1602 [2011]). In any event, even assuming,arguendo, that defendant's initial hesitation to implicate his codefendant in the crimecalled into question the voluntariness of defendant's plea, we conclude on the recordbefore us that County Court fulfilled its "duty to inquire further to ensure that defendant'sguilty plea [was] knowing and voluntary" (Lopez, 71 NY2d at 666; see People v Mitchell, 48AD3d 1081, 1082 [2008], lv denied 10 NY3d 867 [2008]).
Defendant failed to move to withdraw his plea, and thus he failed to preserve for ourreview his further contention that his plea was coerced by the court (see People v Carlisle, 50 AD3d1451, 1451 [2008], lv denied 10 NY3d 957 [2008]). In any event, thatcontention is belied by the record because, during the plea proceeding, defendant deniedthat he had been threatened or otherwise pressured into pleading guilty (see People v Worthy, 46 AD3d1382, 1382 [2007], lv denied 10 NY3d 773 [2008]; People v Gradia, 28 AD3d1206, 1206-1207 [2006], lv denied 7 NY3d 756 [2006]). Furthermore, thecourt did not coerce defendant into pleading guilty merely by informing him of the rangeof sentences that he faced if he proceeded to trial and was convicted (see People v Boyde, 71 AD3d1442, 1443 [2010], lv denied 15 NY3d 747 [2010]; People v Lando, 61 AD3d1389, 1389 [2009], lv denied 13 NY3d 746 [2009]), or by commenting onthe strength of the People's evidence against him (see generally People v Hamilton, 45 AD3d 1396, 1396[2007], lv denied 10 NY3d 765 [2008]; People v Campbell, 236 AD2d877, 878 [1997]). In addition, "the fact that defendant was required 'to accept or rejectthe plea offer within a short time period does not amount to coercion' " (People v Irvine, 42 AD3d949, 949 [2007], lv denied 9 NY3d 962 [2007]; see People v Mason, 56 AD3d1201, 1202 [2008], lv denied 11 NY3d 927 [2009]).
We reject the further contention of defendant that the court erred in determining thathe was not entitled to receive the benefit of a favorable sentencing provision of the pleaagreement, which required him to cooperate with the People in the prosecution of hiscodefendant. At the time of the plea, the court indicated that it would sentence defendantto a lesser sentence if he [*2]cooperated in theprosecution of his codefendant, including providing truthful testimony at hiscodefendant's trial, but that it would impose the maximum sentence if defendant failed tocooperate. Defendant later informed the probation officer who prepared the presentencereport that he would not testify against the codefendant. Based on the information thatdefendant provided to the prosecutor in a meeting prior to the codefendant's trial, whichvaried from the testimony provided by all the other witnesses, and upon defendant'sstatements to the probation officer, the prosecutor determined that defendant would notprovide truthful testimony and declined to call him as a witness at the codefendant's trial.Furthermore, when called as a defense witness at that trial, defendant invoked his rightsunder the Fifth Amendment of the United States Constitution. We agree with the Peoplethat defendant's efforts to cooperate were "of questionable value and . . .clearly less than what the People bargained for" (People v Paige, 266 AD2d 587,588 [1999], lv denied 94 NY2d 827 [1999]; see generally People vCurdgel, 83 NY2d 862, 864 [1994]). Defendant's contention that the cooperationcontemplated by the plea agreement did not require him to testify against his codefendantis belied by the record (cf.People v Gabbidon, 96 AD3d 1235, 1236 [2012]). Consequently, "the recordsupports the court's determination that defendant's level of cooperation in the trial of [hiscodefendant] was insufficient" (People v Crawford, 55 AD3d 1335, 1336 [2008], lvdenied 11 NY3d 896 [2008]).
Defendant further contends that he was denied effective assistance of counselbecause defense counsel did not file certain motions and was late in arriving in court attimes. Defendant's contention "survives his guilty plea only to the extent that [he]contends that his plea was infected by the alleged ineffective assistance." In that context,we conclude that defendant received meaningful representation inasmuch as he received"an advantageous plea and nothing in the record casts doubt on the apparenteffectiveness of counsel" (People v Nieves, 299 AD2d 888, 889 [2002], lvdenied 99 NY2d 631 [2003] [internal quotation marks omitted]; see People v Arney, 120 AD3d949, 950 [2014]; People vCampbell, 106 AD3d 1507, 1508 [2013], lv denied 21 NY3d 1002[2013]).
As the People correctly concede, the uniform sentence and commitment sheetincorrectly recites that defendant was convicted of robbery in the first degree. Thesentence and commitment must therefore be amended to correct the clerical error and toreflect that defendant was convicted of burglary in the first degree (see generally People v Saxton,32 AD3d 1286, 1286-1287 [2006]).
The sentence is not unduly harsh or severe. We have considered defendant'sremaining contentions and conclude that they are without merit. Present—Smith,J.P., Carni, Sconiers and Valentino, JJ.