| People v Robinson |
| 2015 NY Slip Op 07406 [132 AD3d 1407] |
| October 9, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDavid F. Robinson, Appellant. (Appeal No. 1.) |
Timothy P. Donaher, Public Defender, Rochester (Mark C. Davison of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.),rendered November 10, 2010. The judgment convicted defendant, upon his plea ofguilty, of robbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice and on the law by reducing the amount ofrestitution to $2,000, and as modified the judgment is affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himupon his plea of guilty of robbery in the first degree (Penal Law § 160.15[4]) and, in appeal No. 2, he appeals from a judgment convicting him, also upon his pleaof guilty, of criminal possession of a weapon in the second degree(§ 265.03 [3]). In both appeals, defendant contends that he was representedby counsel on a matter upon which he was questioned by the police, and that CountyCourt therefore erred in refusing to suppress his statements to the police. Althoughdefendant's contention survives his guilty pleas (see CPL 710.70 [2]), weconclude that it lacks merit. There was no evidence at the Huntley hearing thatdefendant was represented by counsel on any pending charge when he was questioned,and he thus failed to demonstrate that his right to counsel had indelibly attached (cf. People v Huntsman, 96AD3d 1390, 1391-1392 [2012]).
Contrary to defendant's further contention in both appeals, the court properly refusedto conduct a Mapp hearing in connection with his request to suppress all evidencearising from the stop of the vehicle that he was operating. In seeking a hearing, defendantalleged that the police lacked reasonable suspicion to stop the vehicle because he hadproperly stopped at a stop sign before the police pursued him on a high-speed chasethroughout the City of Rochester. The discovery materials and accusatory instrumentsthat had been provided to defendant indicated that a police sergeant observed defendantoperating a vehicle that had been reported stolen the day before, and that as the sergeantbegan to pursue the vehicle he observed it go through a stop sign without coming to acomplete stop. The discovery materials further indicated that the sergeant and otherofficers observed defendant commit a lengthy series of crimes and additional trafficinfractions during the resulting pursuit, culminating in defendant crashing into a stoppedRochester Police Department patrol vehicle. "The allegations in defendant's movingpapers, when considered in the context of the detailed information provided to defendant,were insufficient to create a factual dispute requiring such a hearing" (People v Springs, 58 AD3d541, 542 [2009], lv denied 12 NY3d 788 [2009]; see People v Caldwell, 78AD3d 1562, 1563 [2010], lv denied 16 NY3d 796 [2011]; see generally People v Long, 8NY3d 1014, 1015 [2007]).
Defendant further contends in appeal No. 1 that the court erred in denying hisday-of-trial request for an adjournment to retain a new attorney. Even assuming,arguendo, that defendant did not forfeit that contention by pleading guilty (seegenerally People v Hansen, 95 NY2d 227, [*2]230-232 [2000]), we reject defendant's contention. It iswell settled that "the constitutional right to [a defense] by counsel of one's own choosingdoes not bestow upon a criminal defendant the absolute right to demand that his trial bedelayed while he selects another attorney to represent him at trial . . .Whether a continuance should be granted is largely within the discretion of the TrialJudge" (People v Arroyave, 49 NY2d 264, 271 [1980]). Here, we perceive noabuse of that discretion.
Defendant further contends that the court erred in imposing restitution in excess ofthe amount promised during the plea. Even assuming, arguendo, that the People arecorrect that "[d]efendant failed to preserve for our review his challenge to the amount ofrestitution imposed" (People vWhite, 70 AD3d 1316, 1318 [2010], lv denied 14 NY3d 845 [2010]),we nevertheless exercise our power to review defendant's contention as a matter ofdiscretion in the interest of justice (see CPL 470.15 [3] [c]). We conclude, as thePeople correctly concede, that the amount of restitution imposed was in excess of theamount set forth in the plea agreement, and we thus conclude that the court erred inimposing that amount. The parties agree, and the record establishes, that the courtpromised at the time of the plea to cap the amount of restitution at $2,000. We thereforemodify the judgment in appeal No. 1 by reducing the amount of restitution accordingly(see People v Butti, 250 AD2d 859, 860 [1998], lv denied 92 NY2d 923[1998]). Present—Smith, J.P., Centra, Valentino, Whalen and DeJoseph, JJ.