| People v Harris |
| 2020 NY Slip Op 02394 [182 AD3d 992] |
| April 24, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Joseph Harris, Appellant. |
Peter J. Digiorgio, Jr., Utica, for defendant-appellant.
Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Dennis S. Cohen, J.),rendered September 1, 2016. The judgment convicted defendant, upon his plea of guilty,of attempted criminal possession of a weapon in the third degree and criminal possessionof stolen property in the fifth degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea ofguilty, of attempted criminal possession of a weapon in the third degree (Penal Law§§ 110.00, 265.02 [1]) and criminal possession of stolen property inthe fifth degree (§ 165.40). Defendant was charged in an eight-countindictment with a series of charges, and he originally pleaded guilty to attempted criminalpossession of a weapon in the third degree and attempted promoting prison contraband inthe first degree (§§ 110.00, 205.25 [2]) as lesser included offenses ofthe crimes charged in the third and eighth counts of the indictment, respectively, in fullsatisfaction of the indictment. On a prior appeal, however, we vacated that part of theplea of guilty to attempted promoting prison contraband because defendant expresslystated during his plea colloquy that he did not knowingly possess any contraband, andCounty Court failed to inquire further to ensure that defendant's guilty plea was knowingand voluntary (People vHarris, 134 AD3d 1587, 1587-1588 [4th Dept 2015], lv denied 27 NY3d998 [2016]). We remitted the matter to County Court for further proceedings on counteight of the indictment, and we noted that, because we vacated part of the plea, "thePeople have been deprived of the benefit of their bargain" (id. at 1588). Thus, wedirected that, "upon remittal, the court should entertain a motion by the People, shouldthe People be so disposed, to vacate the plea . . . in its entirety" (id.[internal quotation marks omitted]). After the People so moved upon remittal, the courtgranted the motion, vacated the judgment of conviction, and reinstated the indictment inits entirety. Defendant later pleaded guilty to the crimes stated above, again in fullsatisfaction of the indictment. We affirm.
Defendant failed to move to withdraw his plea or to vacate the judgment ofconviction, and thus he failed to preserve his contention that his plea of guilty on remittalwas not knowingly, voluntarily, and intelligently entered (see People v Boyden, 112AD3d 1372, 1372-1373 [4th Dept 2013], lv denied 23 NY3d 960 [2014]).We conclude that this case does not fall within the narrow exception to the preservationrequirement because the plea colloquy did not "clearly cast[ ] significant doubt upon thedefendant's guilt or otherwise call[ ] into question the voluntariness of the plea"(People v Lopez, 71 NY2d 662, 666 [1988]). In any event, the evidence in therecord demonstrates that defendant knowingly, voluntarily, and intelligently entered theguilty plea (see People vSeeber, 4 NY3d 780, 781-782 [2005]; People v Weakfall, 108 AD3d 1115, 1116 [4th Dept2013], lv denied 21 NY3d 1078 [2013]).
Contrary to defendant's contention, his failure to admit the elements of the crimes towhich he pleaded guilty does not invalidate his guilty plea. It is well settled that "anallocution based on a negotiated plea need not elicit from a defendant specific admissionsas to each element of the charged crime" (People v Goldstein, 12 NY3d 295, 301 [2009]). Indeed, theCourt of Appeals has "refused to disturb pleas by canny defendants even [where, ashere,] there has been absolutely no elicitation of the underlying facts of the crime. . . It is enough that the allocution shows that the defendant understood thecharges and made an intelligent decision to enter a plea" (id.). Here, "theallocution was adequate to meet these purposes" (id.).
We reject defendant's contention that, on remittal, the court erred in granting thePeople's motion seeking, inter alia, to vacate his prior plea in its entirety. The Peoplewere deprived of the benefit of the original plea agreement when this Court vacateddefendant's plea of guilty with respect to one of the crimes to which defendant pleadedguilty, and thus they were entitled to withdraw their consent to that plea agreement(see generally CPL 220.10 [3], [4]). Accordingly, the court properly exercised itsdiscretion on remittal by granting the People's motion, vacating defendant's priorjudgment of conviction, and reinstating the indictment in its entirety (see People vFarrar, 52 NY2d 302, 307-308 [1981]; People v Speed, 13 AD3d 1083, 1084 [4th Dept 2004],lv denied 5 NY3d 795 [2005]; People v Irwin, 166 AD2d 924, 925 [4thDept 1990]).
Although we agree with defendant that his double jeopardy claim, asserted in apreplea motion, was not forfeited by his subsequent guilty plea (see People vHansen, 95 NY2d 227, 231 n 2 [2000]), we reject his contention that the indictment'sreinstatement violated his right to be protected from double jeopardy under the federaland state constitutions. It is well established that a defendant who succeeds, as defendantdid here, in having a conviction reversed on appeal may be retried for the same offensewithout contravening double jeopardy principles (see Matter of Suarez v Byrne, 10 NY3d 523, 534 [2008],rearg denied 11 NY3d 753 [2008]). Moreover, double jeopardy does not applyunder the circumstances here because defendant's prior judgment of conviction wasvacated on remittal, thereby rendering the conviction a nullity (see Matter of DeCanzio v Kennedy, 67 AD2d 111, 116 [4th Dept 1979], lv denied 47 NY2d709 [1979]; People vYaghoubi, 10 Misc 3d 406, 411 [Nassau Dist Ct 2005]).
We reject defendant's contention that the court erred in denying his motion, uponremittal, asking that the court recuse itself. "Absent a legal disqualification underJudiciary Law § 14, a Trial Judge is the sole arbiter of recusal" (People vMoreno, 70 NY2d 403, 405 [1987]; see People v Chess, 162 AD3d 1577, 1578 [4th Dept2018]). Here, defendant did not allege a legal disqualification under Judiciary Law§ 14; rather, his contention that the court was biased arose from the court'sparticipation in the prior plea, which is not an extrajudicial source of bias that serves as abasis for recusal (see People vTerborg, 156 AD3d 1320, 1321 [4th Dept 2017], lv denied 31 NY3d1018 [2018]).
Defendant's further contention that the court failed to make a sufficient inquiry intohis request for substitution of counsel "is encompassed by the plea . . .except to the extent that the contention implicates the voluntariness of the plea" (People v Morris, 94 AD3d1450, 1451 [4th Dept 2012], lv denied 19 NY3d 976 [2012] [internalquotation marks omitted]; seePeople v Sallard, 175 AD3d 1839, 1839-1840 [4th Dept 2019]). Defendantnonetheless abandoned that request when he "decid[ed] . . . to plead guiltywhile still being represented by the same attorney" (People v Kates, 162 AD3d 1627, 1629 [4th Dept 2018],lv denied 32 NY3d 1065 [2018], denied reconsideration 32 NY3d 1173[2019] [internal quotation marks omitted]). In any event, that contention lacks merit.Defendant failed to demonstrate the requisite "good cause for substitution. . . inasmuch as his objections to his assigned counsel were vague andunsubstantiated" (People vFarmer, 132 AD3d 1238, 1239 [4th Dept 2015], lv denied 27 NY3d1068 [2016]).
Finally, defendant's contention concerning his request for a change of venue wasforfeited by his plea of guilty (see People v Williams, 14 NY2d 568, 570 [1964];People v Baker, 175 AD3d1113, 1114 [4th Dept 2019], lv denied 34 NY3d 978 [2019], lv granted34 NY3d 1126 [2020];People v De Alvarez, 59 AD3d 732, 732-733 [2d Dept 2009], lv denied12 NY3d 852 [2009]). Present—Smith, J.P., Peradotto, DeJoseph, NeMoyerand Curran, JJ.