| People v Henderson |
| 2016 NY Slip Op 08702 [145 AD3d 1554] |
| December 23, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vCurtis N. Henderson, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Romana A. Lavalas of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered September 20, 2010. The judgment convicted defendant, upon his plea ofguilty, of manslaughter in the first degree.
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Supreme Court, Onondaga County, for further proceedings in accordancewith the following memorandum: Defendant appeals from a judgment convicting himupon his plea of guilty of manslaughter in the first degree (Penal Law§ 125.20 [1]). Even assuming, arguendo, that defendant's challenge to thesufficiency of the Miranda warnings provided to him prior to his interrogation ispreserved for our review (seePeople v Smith, 22 NY3d 462, 465 [2013]; cf. People v Louisias, 29 AD3d 1017, 1018-1019 [2006],lv denied 7 NY3d 814 [2006]), we conclude that it is without merit. "[T]hewarnings adequately conveyed that defendant had the right not only to have a lawyerpresent during the entire questioning but to ask for or access that lawyer at any pointduring the questioning" (Peoplev Barber-Montemayor, 138 AD3d 1455, 1455 [2016], lv denied 28NY3d 926 [2016]).
We reject defendant's further contention that Supreme Court abused its discretion indenying his pro se request to withdraw his guilty plea without conducting an evidentiaryhearing. The court afforded defendant the requisite opportunity to present his contentions(see People v Tinsley, 35 NY2d 926, 927 [1974]), and defendant's claim that hepleaded guilty because of duress arising from, inter alia, an alleged assault by a jaildeputy was belatedly raised (see People v Nash [appeal No. 1], 288 AD2d 937,937 [2001], lv denied 97 NY2d 686 [2001]; People v Hanley, 255 AD2d837, 838 [1998], lv denied 92 NY2d 1050 [1999]), contradicted by his statementsduring the plea colloquy (seePeople v McKoy, 60 AD3d 1374, 1374 [2009], lv denied 12 NY3d 856[2009]; Hanley, 255 AD2d at 837-838), and entirely uncorroborated (seeNash, 288 AD2d at 937; People v Morris, 107 AD2d 973, 974-975 [1985];cf. People v Flowers, 30 NY2d 315, 317-319 [1972]). Under thosecircumstances, the court was entitled to determine that defendant's allegation was "abelated maneuver that had no foundation in truth," and thus that an evidentiary hearingwas not required (People v Cannon [appeal No. 1], 78 AD3d 1638, 1638 [2010],lv denied 16 NY3d 742 [2011]; cf. People v Brown, 14 NY3d 113, 116 [2010]). Inaddition, we conclude that the record does not support defendant's contention thatdefense counsel took a position adverse to him in connection with the plea withdrawalrequest (see People vPimentel, 108 AD3d 861, 862-863 [2013], lv denied 21 NY3d 1076[2013]; People v Sylvan,108 AD3d 869, 871 [2013], lv denied 22 NY3d 1091 [2014]; cf. People v King, 129 AD3d992, 993 [2015]).
We agree with defendant, however, that the court erred in failing to determine atsentencing whether he should be afforded youthful offender status (see People v Rudolph, 21NY3d 497, 501 [2013]). Contrary to the People's contention, the court's statementsduring the plea proceeding to the effect that it was not inclined to grant defendantyouthful offender status do not obviate the need for remittal (see People v Eley, 127 AD3d583, 584 [2015]; see alsoPeople v Gutierrez, 140 AD3d 407, 408 [2016]; People v Munoz, 117 AD3d1585, 1585 [2014]). Moreover, inasmuch as a youthful offender determination mustbe made "in every case where the defendant is eligible" (Rudolph, 21 NY3d at501), we reject the People's contention that remittal "would be futile and pointless" here.We therefore hold the case, reserve decision, and remit the matter to Supreme Court tomake and state for the record a determination whether defendant should be affordedyouthful offender status. In view of our determination, we do not address defendant'schallenge to the severity of the sentence. Present—Whalen, P.J., Smith, Peradotto,NeMoyer and Scudder, JJ.