People v McCollough

2016 NY Slip Op 00113 [135 AD3d 490]

January 12, 2016

Appellate Division, First Department

As corrected through Wednesday, March 4, 2015

[*1]

The People of the State of New York,Respondent, v Wallace McCollough, Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Molly Ryan of counsel),for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), forrespondent.

Judgment, Supreme Court, New York County (Charles H. Solomon, J.), renderedJune 11, 2013, convicting defendant, upon his plea of guilty, of burglary in the thirddegree, and sentencing him, as a second felony offender, to a term of 31/2to 7 years as a parole supervision sentence, unanimously affirmed.

Defendant did not preserve his claim that his plea was involuntary (see People v Conceicao, 26NY3d 375, 381, 2015 NY Slip Op 08615, *2 [2015]), and we decline to review it in the interest ofjustice. Although defendant moved to withdraw his plea, it is clear that the relief he wasseeking was the court's adherence, notwithstanding defendant's rearrest, to the originalpromise of a parole supervision sentence (see CPL 410.91), and that the courtgranted that relief to defendant's satisfaction. As an alternative holding, we find thatdefendant's plea was made knowingly, voluntarily, and intelligently, and that the courtsufficiently explained the promised sentence.

Defendant's claim that the integrity of the grand jury proceedings was impairedbecause grand jurors allegedly saw him in handcuffs is likewise unpreserved, and wedecline to review it in the interest of justice. Defendant's motion to dismiss theindictment did not assert this circumstance as a ground for dismissal, although the motionreferred to the alleged handcuffing incident in a different context. As an alternativeholding, we also reject it on the merits. Even at a trial, where the issue is guilt orinnocence, a jury's brief and inadvertent viewing of a defendant in handcuffs does notwarrant reversal (People v Harper, 47 NY2d 857, 858 [1979]).

We perceive no basis for reducing the sentence. Concur—Renwick, J.P.,Andrias, Saxe and Moskowitz, JJ.