| People v Harris |
| 2016 NY Slip Op 03908 [139 AD3d 1244] |
| May 19, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vNorman L. Harris, Appellant. |
David M. Kaplan, Penfield, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Chemung County(Hayden, J.), rendered February 24, 2014, convicting defendant (1) upon his plea ofguilty of the crime of attempted assault in the first degree, and (2) following a nonjurytrial of the crime of robbery in the third degree.
During an argument over drugs on January 18, 2013, defendant struck the victimover the head with an ax three times and thereafter was indicted for robbery in the firstdegree, attempted assault in the first degree and other crimes (hereinafter the firstindictment). Days later, defendant forcibly stole property at knifepoint from a taxicabdriver and was indicted for robbery in the first and third degrees (hereinafter the secondindictment). Following a Wade hearing and other pretrial motion practice, theparties reached a comprehensive agreement resolving both indictments (hereinafter theagreement). Pursuant to the agreement, defendant pleaded guilty to attempted assault inthe first degree under the first indictment, in exchange for a prison sentence of 10 yearswith five years of postrelease supervision. On the second indictment, defendant waivedhis right to a jury trial and consented to a stipulated set of facts admitting the robbery inthe third degree charge, in exchange for a promised concurrent prison sentence of2
Initially, defendant's claim that County Court failed to rule on that part of hisomnibus [*2]motion seeking to dismiss the indictmentsbased upon insufficient evidence before the grand jury is unpreserved, as defendantfailed to raise this claim at any point prior to sentencing (see CPL 470.05 [2]; People v Lee, 16 AD3d704, 704 [2005], lv denied 4 NY3d 887 [2005]). Moreover, by pleadingguilty to attempted assault under the first indictment while this motion was pending andstipulating to the facts under the second indictment, which was the functional equivalentof a guilty plea (see People vBrooks, 23 AD3d 847, 848 [2005], lvs denied 6 NY3d 810, 811 [2006];People v Harler, 296 AD2d 712, 713-714 [2002]), defendant abandoned anychallenge to the lack of a ruling on his motion (see People v Rodriguez, 50 NY2d553, 557-558 [1980]). By entering into the agreement, he also waived his right tochallenge the legal sufficiency of the evidence supporting the indictments (see People v Cole, 118 AD3d1098, 1099 [2014]; Peoplev Melendez, 48 AD3d 960, 960 [2008], lv denied 10 NY3d 962[2008]).[FN1]
Defendant's claim that his guilty plea and stipulation were not voluntary in that hefelt pressured is not preserved for our review in the absence of evidence that he made anappropriate and timely postallocution motion (see CPL 220.60; People v Butler, 134 AD3d1349, 1350 [2015], lv denied 27 NY3d 963 [2016]).[FN2] Moreover, defendant did not make anystatements during his plea allocution or stipulation that were inconsistent with his guilt orcalled into question their voluntariness so as to trigger the narrow exception to thepreservation rule (see People vTyrell, 22 NY3d 359, 363-364 [2013]; People v Guyette, 121 AD3d 1430, 1431 [2014]). Similarlyunpreserved for our review is defendant's claim that his waiver of a jury trial was notvoluntary. In any event, were we to address this issue, we would find that there is anaffirmative showing on this record that defendant was advised of, understood andknowingly waived his right to a jury trial, after discussing it with counsel and signing awritten waiver of jury trial in open court (see CPL 320.10; People v Pazmini, 132 AD3d1015, 1015 [2015]).
Defendant further argues that a restitution hearing should be ordered to ascertain thecorrect amount of restitution to be paid to the assault victim under the first indictment.However, as part of the agreement, defendant expressly agreed to pay restitution to thevictim to cover his medial expenses. Given that defendant never requested a hearing orobjected to the amount awarded at sentencing, this argument is not preserved for ourreview (see People vRoshia, 133 AD3d 1029, 1031 [2015]).[FN3]
Also without merit is defendant's contention that he was deprived of the effectiveassistance of counsel in that counsel failed to object or intercede during the pleaallocution in order to ensure that defendant's guilty plea was not the product of coercionor pressure. Under established law, "a defendant has been afforded meaningfulrepresentation when he or she receives an advantageous plea and nothing in the recordcasts doubt on the apparent effectiveness of counsel" (People v Vonneida, 130 AD3d1322, 1322 [2015] [internal quotation marks and citations omitted], lvdenied 26 NY3d 1093 [2015]). Here, having previously rejected a plea offerrequiring more prison time and with his trial imminent, defendant was offered andaccepted a more beneficial agreement. Although the initial plea allocution was haltedwhen defendant insisted on, and received, rulings on his pro se motions, the proceedingslater resumed and defense counsel advised County Court that defendant wished to acceptthe agreement; defendant repeatedly and unequivocally confirmed his desire to enter aguilty plea, asserting that it was "[b]ecause I am guilty" and that he had sufficient time todiscuss the plea with his attorney. Contrary to defendant's claims, neither the court'sremarks nor the pace and sequence of the proceedings supports a finding that defendantwas pressured into entering a guilty plea and, accordingly, defense counsel cannot befaulted for not objecting or attempting to intercede. As the record reflects that counselpursued appropriate pretrial motions, negotiated a favorable agreement that includedappreciably less time than the 40-year aggregate prison sentence that defendant faced ifconvicted after a trial on the indictments, we find that defendant received meaningfulrepresentation (see People vCaban, 5 NY3d 143, 152 [2005]; People v Beekman, 134 AD3d 1355, 1356-1357[2015]).
Finally, given the violent nature of these separate crimes and inasmuch as theagreed-upon aggregate sentence was substantially less than the maximum potentialconsecutive sentences (see Penal Law §§ 70.00 [2] [d]; 70.02[3] [b]; 70.25 [2]), we find no abuse of discretion or extraordinary circumstances thatwould warrant a reduction of defendant's sentence in the interest of justice (seeCPL 470.15 [3] [c]; [6] [b]; People v Brooks, 118 AD3d 1123, 1124 [2014], lvdenied 24 NY3d 959 [2014]).
Peters, P.J., Lahtinen, Devine and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Notably, shortly beforehe accepted the agreement, defendant himself pressed for and received a ruling byCounty Court on certain pro se pretrial motions, which were denied. Defendant did notraise any issue from his pending omnibus motion filed by defense counsel regarding thelegal sufficiency of the evidence to support the indictments. County Court thereafterascertained, prior to proceeding with the plea allocution and accepting defendant's guiltyplea and stipulation, that defendant did not desire the court to entertain any othermotions.
Footnote 2:Defendant'spostsentencing motions pursuant to CPL article 440 to vacate the judgment ofconviction, among other things, which County Court denied, are not part of the record onappeal and are not properly before us.
Footnote 3:As defense counselnoted at sentencing, a defendant may later move for resentencing to modify the amountof restitution (see CPL 420.10, 420.30).