| People v Fulton |
| 2015 NY Slip Op 08247 [133 AD3d 1194] |
| November 13, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vShayla Fulton, Appellant. |
Charles T. Noce, Conflict Defender, Rochester (Kimberly J. Czapranski of counsel),for defendant-appellant.
Shayla Fulton, defendant-appellant pro se.
Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John Lewis DeMarco, J.),rendered September 2, 2010. The judgment convicted defendant, upon her plea of guilty,of robbery in the first degree (two counts), assault in the first degree and grand larceny inthe fourth degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting her upon her plea ofguilty of two counts of robbery in the first degree (Penal Law § 160.15 [1],[3]), assault in the first degree (§ 120.10 [1]), and grand larceny in thefourth degree (§ 155.30 [1]), arising from the alleged robbery of arestaurant by defendant and her brother. Defendant contends in her pro se supplementalbrief that she was the victim of unconstitutional selective prosecution based upon race(see generally People v Blount, 90 NY2d 998, 999 [1997]), but that contentionwas forfeited by her plea of guilty (see People v Rodriguez, 55 NY2d 776, 777[1981]; People v Ortiz, 233 AD2d 955, 956 [1996]). Defendant further contendsin her pro se supplemental brief that counts one, three and four are multiplicitous on theground that those counts are based upon the same conduct as the conduct charged incount two. That contention is not preserved for our review inasmuch as she failed tochallenge the indictment on that ground (see CPL 470.05 [2]; see People v Quinn, 103 AD3d1258, 1258 [2013], lv denied 21 NY3d 946 [2013]). In any event, thecontention is without merit. "An indictment 'is multiplicitous when a single offense ischarged in more than one count' " (Quinn, 103 AD3d at 1259, quoting People v Alonzo, 16 NY3d267, 269 [2011]). Where, as here, however, each count "requires proof of anadditional fact that the other does not," the indictment is not multiplicitous (People v Jefferson, 125 AD3d1463, 1464 [2015], lv denied 25 NY3d 990 [2015] [internal quotation marksomitted]; cf. Alonzo, 16 NY3d at 269-270; People v Casiano, 117 AD3d 1507, 1509 [2014]).
Defendant failed to preserve for our review the contention in her pro se supplementalbrief that both the search warrant and her arrest were based upon unreliable statements ofan accomplice and thus were not based on probable cause (see CPL 470.15 [3][c]). In any event, we conclude that the contention is without merit inasmuch as "thestatement by the identified citizen informant that was against the informant's 'own penalinterest constituted reliable information for the purposes of supplying probablecause' " (People vBrito, 59 AD3d 1000, 1000 [2009], lv denied 12 NY3d 814 [2009]).Contrary to the further contention of defendant in her pro se supplemental brief, CountyCourt "properly refused to suppress the . . . statements that [she] made topolice investigators while [she] was in custody. The court's determination that defendantvoluntarily waived [her] Miranda rights prior to making those statements wasbased upon the credibility of the witness[ ] at the suppression hearing and thus is entitledto great deference" (People vVaughan, 48 AD3d 1069, 1071 [2008], lv denied 10 NY3d 845 [2008],cert denied 555 US 910 [2008]).
The contention of defendant in her pro se supplemental brief that her plea was notknowingly, intelligently and voluntarily entered because a favorable sentence for herbrother was conditioned upon her plea of guilty is not preserved for our review inasmuchas she failed to move to withdraw the plea or to vacate the judgment of conviction onthat ground (see People vTheall, 109 AD3d 1107, 1108 [2013], lv denied 22 NY3d 1159 [2014];cf. People v Fiumefreddo, 82 NY2d 536, 538-539 [1993]). In any event, thatcontention is without merit because the record does not establish that defendant's pleawas connected to her brother's sentence (cf. Fiumefreddo, 82 NY2d at 542-543).Furthermore, the record establishes that "nothing in the plea allocution called intoquestion defendant's admitted guilt or the voluntariness of the plea" (People v Adams, 66 AD3d1355, 1355-1356 [2009], lv denied 13 NY3d 858 [2009]).
Defendant's contention in her pro se supplemental brief that she was denied effectiveassistance of counsel based upon defense counsel's allegedly erroneous summary of theevidence during the plea colloquy does not survive the plea of guilty because defendanthas "failed to demonstrate that 'the plea bargaining process was infected by [the]allegedly ineffective assistance or that defendant entered the plea because of theattorney['s] allegedly poor performance' " (People v Grandin, 63 AD3d 1604, 1604 [2009], lvdenied 13 NY3d 744 [2009]).
Finally, contrary to the contention raised in the main and pro se supplemental briefs,the sentence is not unduly harsh and severe. Present—Scudder, P.J., Smith,Centra, Peradotto and Carni, JJ.