| People v Morehouse |
| 2016 NY Slip Op 04256 [140 AD3d 1202] |
| June 2, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vScott Morehouse, Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (George J. Hoffman Jr. ofcounsel), for appellant.
Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.
Lahtinen, J. Appeal from a judgment of the County Court of Warren County (HallJr., J.), rendered October 9, 2013, convicting defendant upon his plea of guilty of thecrime of criminal possession of stolen property in the fourth degree.
In 2011, defendant pleaded guilty to forgery in the second degree in full satisfactionof an eight-count indictment and executed a waiver of his right to appeal, and CountyCourt sentenced him to a prison term of 2 to 4 years (109 AD3d 1022, 1022 [2013]). Onappeal, this Court found that defendant had made a statement during his allocution thatimplicated the voluntariness of his guilty plea, vacated defendant's guilty plea andremitted the matter to County Court (id. at 1022-1023). Thereafter, following thedenial of defendant's request for substitute counsel, defendant entered an Alfordplea (North Carolina v Alford, 400 US 25, 37 [1970]) to one count of criminalpossession of stolen property in the fourth degree in full satisfaction of the eight-countindictment and executed in open court a written waiver of the right to appeal. Consistentwith the plea agreement, County Court sentenced defendant to a prison term of1
While defendant's challenge to his Alford plea survives his appeal waiver tothe extent that it implicates the voluntariness of his plea, it is unpreserved as he failed tomake an [*2]appropriate postallocution motion, and thenarrow exception to the preservation rule is inapplicable (see People v Hughes, 134AD3d 1301, 1301 [2015], lv denied 27 NY3d 966 [2016]; People v Dale, 115 AD3d1002, 1007 [2014]; Peoplev Fallen, 106 AD3d 1118, 1119 [2013], lv denied 22 NY3d 1156[2014]; People v Ture, 94AD3d 1163, 1164 [2012], lv denied 19 NY3d 968 [2012]). In any event,were the issue properly before us, we would find defendant's contention that CountyCourt erred in accepting his Alford plea unavailing. Here, the record reveals thatCounty Court ensured that defendant understood the rights that he knowingly andvoluntarily relinquished by pleading guilty, that he had the opportunity to speak with hisattorney before pleading guilty and that his plea was "the product of a voluntary andrational choice" to avoid the risks of trial and the possibility of consecutive sentences fornumerous convictions (Matter of Silmon v Travis, 95 NY2d 470, 475 [2000];see People v Ture, 94 AD3d at 1164; People v Andrews, 78 AD3d 1229, 1233 [2010], lvdenied 16 NY3d 827 [2011]).
Similarly, even if defendant's contention that County Court failed to make anadequate inquiry before denying his request for substitute counsel survived his appealwaiver by implicating the voluntariness of his guilty plea (see People v Rolfe, 83 AD3d1219, 1220 [2011], lv denied 17 NY3d 809 [2011]), defendant failed topreserve this claim by moving to withdraw his plea (see CPL 220.60 [3]). In anyevent, County Court's ample inquiry into the basis for defendant's request for substitutecounsel revealed nothing more than defendant's personal animus towards his trialattorney, and defendant failed to articulate any "conflict of interest or other irreconcilableconflict" that affected counsel's representation of him (People v Stevenson, 112 AD3d989, 990 [2013], lv denied 22 NY3d 1159 [2014] [internal quotation marksomitted]; accord People v Sides, 75 NY2d 822, 824 [1990]). Accordingly, werethis issue before us, we would find that defendant failed to demonstrate good cause forthe appointment of substitute counsel, and, therefore, County Court did not abuse itsdiscretion in denying his request (see People v Clapper, 133 AD3d 1037, 1039 [2015], lvdenied 27 NY3d 995 [2016]; People v Stevenson, 112 AD3d at 990-991;People v Rolfe, 83 AD3d at 1220).
Finally, defendant's claim that there is a lack of support in the record for the amountof restitution ordered is also unpreserved for our review because the plea agreement andappeal waiver specified $991 as the amount of restitution to be imposed, and defendantfailed to request a hearing or challenge that amount during sentencing (cf. People v Robinson, 133AD3d 1043, 1044 [2015]; People v Gardner, 129 AD3d 1386, 1388 [2015]).Nevertheless, the People concede in their brief, and we agree, that the $1,345 inrestitution ordered by County Court exceeds the $991 that was specified in the pleaagreement and in the appeal waiver signed by defendant. We therefore deem itappropriate to exercise our interest of justice jurisdiction to take corrective action andmodify the judgment by reversing the sentence only insofar as it directs defendant to payrestitution in the amount of $1,345 and remit the matter to County Court for theimposition of restitution in the correct amount (see People v Gardner, 129 AD3dat 1388; People v Lyman,119 AD3d 968, 970 [2014]).
Peters, P.J., Garry, Clark and Mulvey, JJ., concur. Ordered that the judgment ismodified, as a matter of discretion in the interest of justice, by reversing so much thereofas directed defendant to pay restitution in the amount of $1,345; matter remitted to theCounty Court of Warren County for further proceedings not inconsistent with thisCourt's decision; and, as so modified, affirmed.