| People v Shanley |
| 2020 NY Slip Op 07770 [189 AD3d 2108] |
| December 23, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Douglas Shanley, Jr., Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Allyson L. Kehl-Wierzbowski of counsel),for defendant-appellant.
Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Robert B. Wiggins, J.), renderedApril 12, 2016. The judgment convicted defendant upon his plea of guilty of petit larceny andcriminal possession of stolen property in the fifth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofpetit larceny (Penal Law § 155.25) and criminal possession of stolen property in thefifth degree (§ 165.40). We affirm.
Contrary to defendant's contention, we conclude that County Court did not abuse itsdiscretion in denying his request for a further adjournment of sentencing to afford him anopportunity to file a motion to withdraw his plea (see People v Spears, 24 NY3d 1057, 1058-1060 [2014]).
To the extent that defendant challenges the voluntariness of his plea, defendant failed topreserve that challenge for our review because he did not move to withdraw the plea or to vacatethe judgment of conviction (see People vMobayed, 158 AD3d 1221, 1222 [4th Dept 2018], lv denied 31 NY3d 1015[2018]). In People v Lopez (71 NY2d 662 [1988]), however, the Court of Appeals carvedout a narrow exception to the preservation requirement for the "rare case" in which "thedefendant's recitation of the facts underlying the crime pleaded to clearly casts significant doubtupon the defendant's guilt or otherwise calls into question the voluntariness of the plea," therebyimposing upon the trial court "a duty to inquire further to ensure that defendant's guilty plea isknowing and voluntary" (id. at 666). "Where the court fails in this duty and accepts theplea without further inquiry, the defendant may challenge the sufficiency of the allocution ondirect appeal, notwithstanding that a formal postallocution motion was not made" (id.).Here, nothing defendant said during the plea colloquy itself required the court to inquire furtherbefore accepting the plea (see People vSheppard, 149 AD3d 1569, 1569 [4th Dept 2017], lv denied 29 NY3d 1133[2017]). Moreover, even assuming, arguendo, that the court's duty to inquire as contemplated byLopez may be triggered by a defendant's statements at junctures subsequent to acceptanceof the plea (see People v Pastor, 28NY3d 1089, 1090-1091 [2016]; seegenerally People v Delorbe, 35 NY3d 112, 121 [2020]), and thus that the exceptionapplies here due to the court's failure to inquire into statements made by defendant both duringthat part of the sentencing proceeding imposing jail terms and that part conducting the separaterestitution hearing (see Lopez, 71 NY2d at 666), we nonetheless reject defendant'schallenge to the voluntariness of his plea. To the extent that defendant suggested that he waspressured into accepting the plea by defense counsel, that suggestion was "belied by hisstatements during the plea proceeding[ ]" and, in addition, defendant's "conclusory andunsubstantiated claim[s] of innocence [were] belied by his admissions during the plea colloquy"(People v Garner, 86 AD3d955, 955 [4th Dept 2011]; seePeople v Wilson, 179 AD3d 1527, 1528 [4th Dept 2020], lv denied [*2]35 NY3d 945 [2020]; People v Lewandowski, 82 AD3d 1602, 1602 [4th Dept2011]).
Defendant also challenges the order of restitution issued by the court after it bifurcated thesentencing proceeding by severing the issue of restitution for a separate hearing. Initially,although defendant failed to appeal from the order of restitution (see People v Briglin, 125 AD3d1518, 1519 [4th Dept 2015], lv denied 26 NY3d 926 [2015]; see generally People v Connolly, 100AD3d 1419, 1419 [4th Dept 2012]), under the circumstances of this case we deem" 'the . . . restitution order[ ] here to be [an] amendment[ ] to the judgmentof conviction, [and thus] our review of such order[ ] is appropriate' upon defendant's appeal fromthe judgment of conviction" (People vMoore, 124 AD3d 1386, 1387 [4th Dept 2015]). We nevertheless reject defendant'scontention that the evidence at the restitution hearing was insufficient to support the amount ofrestitution ordered. The People met their burden of establishing the amount of restitution by therequisite preponderance of the evidence (see CPL 400.30 [4]; People v Tzitzikalakis, 8 NY3d217, 221-222 [2007]) through the victim's testimony, which the court implicitly found to becredible, and the receipt documenting the cost of the stolen items (see People v Perez, 130 AD3d1496, 1497 [4th Dept 2015]; Peoplev Davis, 114 AD3d 1287, 1288 [4th Dept 2014]; People v Wilson, 108 AD3d 1011, 1013 [4th Dept 2013]).Although defendant challenged the victim's recollection and presented his own conflictingtestimony, we perceive "no basis in the record for us to substitute our credibility determinationsfor those of the court, which had 'the advantage of observing the witnesses and [was] in a betterposition to judge veracity than an appellate court' " (Perez, 130 AD3d at 1497).Present—Peradotto, J.P., Carni, Lindley, Curran and Bannister, JJ.