| People v Crandall |
| 2020 NY Slip Op 01857 [181 AD3d 1091] |
| March 16, 2020 |
| Appellate Division, Third Department |
[*1](March 16, 2020)
| The People of the State of New York,Respondent, v George S. Crandall III, Appellant. |
Kathy Manley, Selkirk, for appellant.
New York State Prosecutors Training Institute, Inc., Albany (Lauren D. Konsul ofcounsel), for respondent.
Garry, P.J. Appeal from a judgment of the County Court of Hamilton County(Feldstein, J.), rendered May 3, 2016, convicting defendant upon his plea of guilty of thecrime of driving while intoxicated.
In April 2015, defendant was indicted and charged with the crime of driving whileintoxicated as a felony and the traffic offense of driving to the left of no passing markers.The charges stemmed from an incident wherein a sergeant with the Hamilton CountySheriff's Department came upon the scene of a single-vehicle accident and encountereddefendant standing alone by the side of the road. Defendant emitted a strong odor ofalcohol, and the sergeant observed that defendant was unsteady on his feet and hadbloodshot eyes, impaired motor coordination and slurred speech. When asked how muchhe had to drink that evening, defendant clutched his chest, professed to be experiencingchest pains and was transported to a local hospital. As a result, no field sobriety testswere performed; defendant refused to submit to chemical testing at the hospital, and hedeferred a request by medical personnel for a blood draw. In conjunction with thatindictment, County Court conducted a probable cause hearing and found that there wasprobable cause for defendant's arrest.
Thereafter, in September 2015, defendant was charged in a superseding indictmentwith one count of driving while intoxicated and one count of driving while abilityimpaired by a combination of drugs and/or alcohol (both as felonies). Defendantultimately elected to enter an Alford plea to the charge of driving whileintoxicated with the understanding that he would receive a sentence of time served withno period of probation. County Court imposed the promised sentence, and this appealensued.
Preliminarily, we agree with defendant that the waiver of the right to appeal wasinvalid. During the brief colloquy with defendant, County Court did not sufficientlydistinguish the waiver of the right to appeal from the trial-related rights that defendantwas forfeiting by virtue of his guilty plea, and the record does not reflect that defendantexecuted a written waiver. Additionally, in response to County Court's inquiry regardingdefendant's willingness to waive his right to appeal, defendant replied, "Yes, if that'swhat I gotta do, yes. If that's what you're making me do, I'll do it." Under thesecircumstances, we are unable to conclude that defendant knowingly, intelligently andvoluntarily waived his right to appeal. Accordingly, defendant is not precluded fromarguing that the authorities lacked probable cause to arrest him (see People v Herbert, 147AD3d 1208, 1209 [2017]). However, we find defendant's argument on this point tobe lacking in merit.
"Probable cause does not require proof sufficient to warrant a conviction beyond areasonable doubt but merely information sufficient to support a reasonable belief that anoffense has been or is being committed or that evidence of a crime may be found in acertain place" (People vWarren, 160 AD3d 1132, 1133 [2018] [internal quotation marks and citationsomitted], lv denied 31 NY3d 1154 [2018]). The sergeant's testimony regardinghis observations at the accident scene and his direct interaction with defendant, includinghis statement that defendant, who admittedly was driving the vehicle involved in theaccident, smelled strongly of alcohol, was unsteady on his feet, exhibited impaired motorskills and was slurring his words, was sufficient to support a reasonable belief thatdefendant was driving while intoxicated (compare People v Hoffman, 135 AD2d299, 302 [1988]). Contrary to defendant's assertion, "the fact that [he] did not submit tofield sobriety testing at the scene is not fatal to a finding of probable cause to arrest [him]for driving while intoxicated" (People v Warren, 160 AD3d at 1134).
Defendant's challenge to the voluntariness of his Alford plea is unpreservedfor our review absent evidence of an appropriate postallocution motion, as is his claimthat the record does not contain the requisite strong evidence to support his guilty plea(see People v Tadd, 154AD3d 1014, 1015 [2017], lv denied 30 NY3d 1109 [2018]; People v Hinkle, 56 AD3d1210, 1210 [2008]; Peoplev Morelli, 46 AD3d 1215, 1216 [2007], lv denied 10 NY3d 814 [2008];People v Lopez, 33 AD3d1062, 1062 [2006], lv denied 8 NY3d 847 [2007]), and we are not persuadedthat his statements during the plea colloquy triggered the narrow exception to thepreservation requirement (seePeople v Alsaifullah, 162 AD3d 1483, 1485 [2018], lv denied 32 NY3d1062 [2018]; People vTchiyuka, 160 AD3d 1488, 1488-1489 [2018]). Notably, in the context of anAlford plea, "defendant was not required to . . . admit hisparticipation in the acts constituting the crime" to which he pleaded guilty (People vGreen, 249 AD2d 691, 693 [1998]; see People v Tausinger, 21 AD3d 1181, 1182 [2005]). Inany event, we discern no basis upon which to invalidate defendant's plea.
Although the "better practice" would have been for the prosecutor to place upon therecord the evidence of defendant's guilt, County Court—having conducted theprobable cause hearing—was well aware of the evidence against defendant, and"we are satisfied that there was strong, competent evidence of defendant's guilt"(People v Lopez, 33 AD3d at 1062; see People v Washington, 51 AD3d 1223, 1224 [2008])."Despite his denials of guilt, defendant stated clearly on the record that he wanted toenter a guilty plea to avoid the possibility of a more severe sentence in the event that thecase proceeded to trial. Defendant's statements demonstrate that his decision to enter aguilty plea despite his purported innocence was the product of a voluntary and rationalchoice, and thus the Alford plea was proper" (People v Tchiyuka, 160AD3d at 1489 [internal quotation marks and citations omitted]; see People v Rivers, 145 AD3d1591, 1592 [2016], lv denied 29 NY3d 952 [2017]; People v Hinkle,56 AD3d at 1210). Defendant's remaining contentions have been examined and found tobe lacking in merit.
Clark, Devine, Pritzker and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.