| People v Russell |
| 2015 NY Slip Op 08249 [133 AD3d 1199] |
| November 13, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJeffery T. Russell, Appellant. (Appeal No. 1.) |
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of counsel), fordefendant-appellant.
Richard M. Healy, District Attorney, Lyons (Melvin Bressler of counsel), forrespondent.
Appeal from a judgment of the Wayne County Court (Dennis M. Kehoe, J.),rendered November 30, 2010. The judgment convicted defendant, upon his plea ofguilty, of arson in the second degree and arson in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himupon his plea of guilty of arson in the second degree (Penal Law § 150.15)and arson in the third degree (§ 150.10 [1]). In appeal No. 2, defendantappeals from a judgment convicting him upon his plea of guilty of assault in the seconddegree (§ 120.05 [4]).
Defendant contends in each appeal that his respective guilty pleas were not knowing,voluntary, and intelligent. That contention is not preserved for our review inasmuch asdefendant did not move to withdraw his guilty pleas or move to vacate the judgments ofconviction on that ground (seePeople v Wilson, 117 AD3d 1476, 1477 [2014]; People v Lewis, 114 AD3d1310, 1311 [2014], lv denied 22 NY3d 1200 [2014]; People v Lugg, 108 AD3d1074, 1075 [2013]), and the narrow exception to the preservation rule does notapply here (see People v Lopez, 71 NY2d 662, 666 [1988]). In any event, weconclude that defendant's "yes" and "no" answers during the plea colloquies do notinvalidate his guilty pleas (see Lewis, 114 AD3d at 1311; People v Dunham, 83 AD3d1423, 1424 [2011], lv denied 17 NY3d 794 [2011]). Moreover, contrary todefendant's contention, we conclude that his answers "confirmed the accuracy of [CountyCourt's] recitation of the facts underlying the crime[s], and . . . there is norequirement that [defendant] personally recite those facts" (People v Whipple, 37 AD3d1148, 1148 [2007], lv denied 8 NY3d 928 [2007]; see People v Smith, 35 AD3d1256, 1256 [2006], lv denied 8 NY3d 927 [2007]). We further conclude thatthe court sufficiently inquired about defendant's mental health issues and medicationsand ensured that he was lucid and understood the proceedings during both pleacolloquies, and his pleas were thus knowing, voluntary, and intelligent (see People v Lear, 19 AD3d1002, 1002 [2005], lv denied 5 NY3d 807 [2005]; People v McCann,289 AD2d 703, 703-704 [2001]).
With respect to appeal No. 1, defendant's contention that the court erred in failing tohold a presentence conference or summary hearing (see CPL 400.10 [1], [3]) tocorrect alleged errors in the preplea report is likewise unpreserved because, afterdefendant pleaded guilty, defense counsel failed to request a hearing after "reserving" hisright to do so in his omnibus motion (see CPL 470.05 [2]). In any event, the courtdid not abuse its discretion by proceeding to sentencing without a hearing inasmuch as"[t]he sentencing transcript establishes that the court did not rely upon the allegedlyimproper material included in the [preplea report] in sentencing defendant" in accordancewith the plea agreement (Peoplev Gibbons, 101 AD3d 1615, 1616 [2012]; see People v Sumpter, 286AD2d 450, 452 [2001], lv denied 97 NY2d 658 [2001]; see generallyCPL 400.10 [1]).
We reject defendant's contention that defense counsel was ineffective for failing torequest a hearing to challenge the inclusion of information in the preplea reportconcerning his involvement in previous fires and his mental health diagnosis (seeCPL 400.10 [1], [3]). Although defendant correctly contends that erroneous informationin a preplea report "create[s] an unjustifiable risk of future adverse effects to [him] inother contexts" (People vFreeman, 67 AD3d 1202, 1203 [2009]), we conclude that defendant has madeno showing that the information in the preplea report was inaccurate (see People v Rudduck, 85AD3d 1557, 1557-1558 [2011], lv denied 17 NY3d 861 [2011]). Moreover,the record demonstrates that the information was gathered during the investigation toprepare the report and, although it may not have met the technical rules for admissibilityat trial, it was properly included in the report (see Rudduck, 85 AD3d at1557-1558; People vThomas, 2 AD3d 982, 984 [2003], lv denied 1 NY3d 602 [2004]). Thus,under the circumstances presented, we conclude that a request for such a hearing wouldhave had little to no chance of being granted (see People v Caban, 5 NY3d 143, 152 [2005]).
We reject defendant's further contention that defense counsel was ineffective forfailing to dispute defendant's "ability to know" that he had set a fire, or that there werepeople in the building, in light of the results of a subsequent test of his blood alcohollevel. We construe defendant's contention as involving the element of intent set forth inPenal Law §§ 150.15 and 150.10 (1) and/or the element of knowledgeof the presence of a person in the building or reasonable possibility thereof pursuant tosection 150.15 (see generally § 15.25; People v Brown, 52 AD3d248, 249 [2008], lv denied 11 NY3d 735 [2008]). The general rule is that anintoxicated person may form the required intent to commit a crime, and it is for the juryto decide if the extent of the intoxication acted to negate the element of intent (seePeople v Dorst, 194 AD2d 622, 622 [1993], lv denied 82 NY2d 924 [1994];People v Rivera, 170 AD2d 625, 626 [1991], lv denied 77 NY2d 999[1991]). The decision whether to pursue an intoxication defense is clearly one of strategy(see Swail v Hunt, 742 F Supp 2d 352, 366 [2010]). Here, defendant admittedduring his plea allocution that he intentionally damaged a building by starting a fire, andthat he knew that another person was in the building or that the circumstances were suchas to render the presence of such a person a reasonable possibility. Under thecircumstances presented on this record, we conclude that defendant has failed "todemonstrate the absence of strategic or other legitimate explanations" for defensecounsel's alleged failure to pursue an intoxication defense (People v Rivera, 71NY2d 705, 709 [1988]). Thus, defendant failed to meet the requisite burden in support ofhis claim of ineffective assistance of counsel (see id.).
Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J.,Peradotto, Carni, Valentino and Whalen, JJ.