| People v Willard |
| 2018 NY Slip Op 01963 [159 AD3d 1228] |
| March 22, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Paul K.Willard, Appellant. |
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.
Gary M. Pasqua, District Attorney, Canton (Matthew L. Peabody of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of St. Lawrence County (Richards,J.), rendered December 14, 2015, convicting defendant upon his plea of guilty of the crimes ofburglary in the first degree, kidnapping in the second degree and criminal contempt in the firstdegree.
Defendant was charged by indictment with burglary in the first degree, kidnapping in thesecond degree and criminal contempt in the first degree. The charges stemmed from an incidentin which defendant, in the middle of the night and carrying a rifle, entered the home where hisformer girlfriend (hereinafter the victim) was living with her children, put the gun to her headand abducted her from a bed where she was sleeping with their young daughter. A no-contactorder of protection had been issued weeks earlier in favor of the victim and the daughter.Defendant threatened to shoot anyone who tried to stop him and forced the victim at gunpoint toleave with him, carrying her on his shoulder to her truck, and then drove off with her; heeventually took the victim to his home, where she managed to escape after a neighbor intervened.The matter proceeded to trial and, after several witnesses testified and the victim concluded herdirect testimony, defendant conferred with counsel and then indicated that he wanted to pleadguilty to the indictment. After defendant was advised of, among other things, the maximumpotential sentence for each count of the indictment, he was sworn and pleaded guilty to each ofthe charges with the understanding that County Court was making no sentencing promise. Atsentencing, County Court placed on the record that it had received letters from defendant and hisrelatives raising various complaints, including allegations against counsel and, [*2]after conferring with defendant, the court relieved counsel andassigned the Public Defender to represent defendant. County Court thereafter sentenceddefendant to a prison term of 15 years with five years of postrelease supervision on both theburglary and the kidnapping convictions, to be served concurrently, and a prison term of 1 to 3years on the criminal contempt conviction, to be served consecutively. Defendant appeals.
We affirm. Defendant's challenge to his guilty plea as involuntary was not preserved by apostallocution motion to withdraw his plea, despite ample opportunity to do so (see CPL220.60 [3]; People v Williams, 27NY3d 212, 219-222 [2016]; Peoplev Conceicao, 26 NY3d 375, 381-382 [2015]; People v Evans, 156 AD3d 1246, 1247 [2017]). Defendant'sreliance upon his unsworn statements in a postplea letter sent to County Court prior tosentencing, which contradicted his sworn plea allocution, is unavailing, as this neither properlypreserved this issue for appeal nor constituted a motion to withdraw his guilty plea. Moreover,substitute counsel was thereafter assigned to represent defendant, and the record reflects thatdefendant conferred with counsel, who advised him regarding the consequences of moving towithdraw his plea and counsel's opinion on the likely outcome of a second trial. The court alsodirectly inquired regarding the complaints in defendant's letter, which defendant expresslywaived, indicating that he did not need time to further discuss the matter with counsel andwished to proceed with sentencing. Accordingly, we find that defendant, represented by counsel,was aware of his rights, specifically including his right to move to withdraw his guilty plea, andknowingly waived any claims regarding his plea.
Contrary to defendant's arguments regarding his allocution to the burglary in the seconddegree charge, the record does not reflect that he made any statements during the plea allocutionor at sentencing that cast doubt on his guilt, negated an element of the crime or called intoquestion the voluntariness of his plea so as to trigger the narrow exception to the preservationrequirement (see People v Williams, 27 NY3d at 219-220; People v Lopez, 71NY2d 662, 665-666 [1988]; People vPeterson, 147 AD3d 1148, 1149 [2017]; cf. People v Gresham, 151 AD3d 1175, 1177-1178 [2017]). To thatend, defendant admitted that he entered the home where the victim was staying intending tocommit a crime therein, while armed with a loaded rifle that he pointed at the victim (seePenal Law § 140.30 [4]). As "the People are not required to prove the particularcrime that the defendant intended to commit inside the burglarized structure" (People v Cajigas, 19 NY3d 697,701 [2012]), County Court was not required to ascertain from defendant his particular intent inentering the home. Although defendant indicated during the allocution that he did not enter thehome intending to abduct the victim, this merely reflected that this was not the particular crimethat defendant intended to commit when he entered, and did not negate his admitted intent tocommit a crime at the time of his unlawful entry. The fact that the particular crime was notspecified or allocuted to did not render the plea allocution deficient or trigger a duty of furtherinquiry.[FN*] Further, giventhat the burglary was complete once defendant entered the home, and that his subsequentabduction of the victim at gunpoint and transport to his home could be viewed as a separate anddistinct act, the court did not err in advising defendant, [*3]afterhe indicated a desire to enter a guilty plea to the indictment, that he faced potential consecutivesentences on the burglary and kidnapping counts (see Penal Law § 70.25[2]; People v McKnight, 16 NY3d43, 47-48 [2010]; People vThorpe, 141 AD3d 927, 935 [2016], lv denied 28 NY3d 1031 [2016]). Were weto address his challenge, we would find that his guilty plea was, in all respects, a knowing,voluntary and intelligent choice among known alternatives (see People v Fiumefreddo, 82NY2d 536, 546 [1993]; People vHollenbeck, 152 AD3d 974, 975 [2017], lv denied 30 NY3d 1061 [2017]).
Finally, we are unpersuaded by defendant's contention that the sentence, which was far lessthan the maximum potential sentence had he been convicted after a trial, was harsh andexcessive. Considering the violent and escalating nature of defendant's conduct, and his repeatedviolation of orders of protection, we find no extraordinary circumstances or abuse of discretionthat would warrant a reduction of the sentence in the interest of justice (see People v Girard, 111 AD3d1153, 1154 [2013], lv denied 23 NY3d 1036 [2014]). Defendant's remaining claimssimilarly lack merit.
Devine, Mulvey, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Although defendant alsoadmitted that he intended to violate the order of protection at the time that he unlawfully enteredthe home, we note that neither the indictment nor the allocution limited the theory of the burglarycharge to this crime. County Court was not required to ask defendant to further elaborate on hiscriminal intent (cf. People v Cajigas, 19 NY3d at 701-702; People v Womack, 143 AD3d1171, 1171 [2016], lv denied 28 NY3d 1151 [2017]).