| People v VanVleet |
| 2016 NY Slip Op 04529 [140 AD3d 1633] |
| June 10, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Alexander S. VanVleet, Appellant. |
Davison Law Office PLLC, Canandaigua (Mary P. Davison of counsel), fordefendant-appellant.
Brooks T. Baker, District Attorney, Bath (John C. Tunney of counsel), forrespondent.
Appeal from a judgment of the Steuben County Court (Peter C. Bradstreet, J.),rendered June 4, 2013. The judgment convicted defendant, upon his plea of guilty, ofburglary in the first degree, robbery in the first degree, robbery in the second degree (twocounts), grand larceny in the fourth degree and petit larceny.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice and on the law by vacating the sentence andas modified the judgment is affirmed, and the matter is remitted to Steuben County Courtfor further proceedings in accordance with the following memorandum: Defendantappeals from a judgment convicting him upon his plea of guilty of, inter alia, burglary inthe first degree (Penal Law § 140.30 [4]), robbery in the first degree(§ 160.15 [4]), and two counts of robbery in the second degree(§ 160.10 [1], [3]). Defendant's contention that he was denied effectiveassistance of counsel does not survive his guilty plea because he failed to demonstratethat " 'the plea bargaining process was infected by [the] allegedly ineffectiveassistance or that defendant entered the plea because of [defense counsel's] allegedlypoor performance' " (People v Lucieer, 107 AD3d 1611, 1612 [2013]; see People v Russell, 55 AD3d1314, 1314 [2008], lv denied 11 NY3d 930 [2009]). Indeed, we note that therecord establishes that defendant was motivated by, among other things, the People'spromise not to prosecute a family member for hindering prosecution. We rejectdefendant's contention that his statement to the police was elicited in violation of hisright to counsel. "Where, as here, the right to counsel is alleged to have arisen solely dueto the commencement of formal proceedings on another pending charge, the police mayquestion a suspect on an unrelated new matter in the absence of counsel" (People v Brinson, 28 AD3d1189, 1189-1190 [2006], lv denied 7 NY3d 810 [2006]).
Contrary to defendant's further contention, "the fact that a witness viewed the photoarray while a second witness was in the room did not taint the witness's identification ofdefendant's photograph in the photo array" (People v Rodriguez, 17 AD3d 1127, 1129 [2005], lvdenied 5 NY3d 768 [2005]). There is no evidence in the record that the secondwitness participated in the identification procedure or influenced the identification ofdefendant by the first witness. Defendant failed to preserve for our review his additionalcontentions that the photo array procedure was unduly suggestive (see People v Carson, 126AD3d 1537, 1538 [2015], lv denied 26 NY3d 927 [2015]). In any event,those contentions are without merit. Although the witness was shown the photo array ontwo occasions within four days, it is well settled that " '[m]ultiple photoidentification procedures are not inherently suggestive' " (People v Dickerson, 66 AD3d1371, 1372 [2009], lv denied 13 NY3d 859 [2009]). Further, the statementof the police investigator to the witness prior to the second identification procedure thatthere was a possible suspect in custody did not render the procedure unduly suggestive(see generally People vFloyd, 45 AD3d 1457, 1459 [2007], lv denied 10 NY3d 811[2008]).
Defendant failed to preserve for our review his contention that County Court erred inimposing restitution because restitution was not part of the plea agreement (seeCPL 470.05 [2]). [*2]We nevertheless exercise ourpower to review that contention as a matter of discretion in the interest of justice (see People v Ponder, 42 AD3d880, 882 [2007], lv denied 9 NY3d 925 [2007]), and we conclude that thecourt should have "afforded [defendant] the opportunity to withdraw his plea beforeordering him to pay restitution" (id.; see People v Wilson, 125 AD3d 1303, 1303 [2015]; People v Rhodes, 91 AD3d1280, 1281 [2012]). We therefore modify the judgment by vacating the sentence,and we remit the matter to County Court to impose the promised sentence or to afforddefendant the opportunity to withdraw his plea. Finally, we reject defendant's contentionthat the bargained-for sentence is unduly harsh and severe. Present—Whalen, P.J.,Carni, NeMoyer, Troutman and Scudder, JJ.