People v. Harris , 34 N.Y.S.3d 179 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: May 19, 2016 106558
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
NORMAN L. HARRIS,
Appellant.
________________________________
Calendar Date: April 26, 2016
Before: Peters, P.J., Lahtinen, Egan Jr., Devine and Mulvey, JJ.
__________
David M. Kaplan, Penfield, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (John R.
Thweatt of counsel), for respondent.
__________
Egan Jr., J.
Appeal from a judgment of the County Court of Chemung
County (Hayden, J.), rendered February 24, 2014, convicting
defendant (1) upon his plea of guilty of the crime of attempted
assault in the first degree, and (2) following a nonjury trial of
the crime of robbery in the third degree.
During an argument over drugs on January 18, 2013,
defendant struck the victim over the head with an ax three times
and thereafter was indicted for robbery in the first degree,
attempted assault in the first degree and other crimes
(hereinafter the first indictment). Days later, defendant
forcibly stole property at knife point from a taxicab driver and
was indicted for robbery in the first and third degrees
(hereinafter the second indictment). Following a Wade hearing
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and other pretrial motion practice, the parties reached a
comprehensive agreement resolving both indictments (hereinafter
the agreement). Pursuant to the agreement, defendant pleaded
guilty to attempted assault in the first degree under the first
indictment, in exchange for a prison sentence of 10 years with
five years of postrelease supervision. On the second indictment,
defendant waived his right to a jury trial and consented to a
stipulated set of facts admitting the robbery in the third degree
charge, in exchange for a promised concurrent prison sentence of
2a to 7 years, resulting in County Court finding him guilty on
that count. Defendant was sentenced consistent with the
agreement and now appeals.
Initially, defendant's claim that County Court failed to
rule on that part of his omnibus motion seeking to dismiss the
indictments based upon insufficient evidence before the grand
jury is unpreserved, as defendant failed to raise this claim at
any point prior to sentencing (see CPL 470.05 [2]; People v Lee,
16 AD3d 704, 704 [2005], lv denied 4 NY3d 887 [2005]). Moreover,
by pleading guilty to attempted assault under the first
indictment while this motion was pending and stipulating to the
facts under the second indictment, which was the functional
equivalent of a guilty plea (see People v Brooks, 23 AD3d 847,
848 [2005], lvs denied 6 NY3d 810, 811 [2006]; People v Harler,
296 AD3d 712, 713-714 [2002]), defendant abandoned any challenge
to the lack of a ruling on his motion (see People v Rodriguez, 50
NY2d 553, 557-558 [1980]). By entering into the agreement, he
also waived his right to challenge the legal sufficiency of the
evidence supporting the indictments (see People v Cole, 118 AD3d
1098, 1099 [2014]; People v Melendez, 48 AD3d 960, 960 [2008], lv
denied 10 NY3d 962 [2008]).1
1
Notably, shortly before he accepted the agreement,
defendant himself pressed for and received a ruling by County
Court on certain pro se pretrial motions, which were denied.
Defendant did not raise any issue from his pending omnibus motion
filed by defense counsel regarding the legal sufficiency of the
evidence to support the indictments. County Court thereafter
ascertained, prior to proceeding with the plea allocution and
accepting defendant's guilty plea and stipulation, that defendant
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Defendant's claim that his guilty plea and stipulation were
not voluntary in that he felt pressured is not preserved for our
review in the absence of evidence that he made an appropriate and
timely postallocution motion (see CPL 220.60; People v Butler,
134 AD3d 1349, 1350 [2015], lvs denied 27 NY3d 962, 963 [2016]).2
Moreover, defendant did not make any statements during his plea
allocution or stipulation that were inconsistent with his guilt
or called into question their voluntariness so as to trigger the
narrow exception to the preservation rule (see People v Tyrell,
22 NY3d 359, 363-364 [2013]; People v Guyette, 121 AD3d 1430,
1431 [2014]). Similarly unpreserved for our review is
defendant's claim that his waiver of a jury trial was not
voluntary. In any event, were we to address this issue, we would
find that there is an affirmative showing on this record that
defendant was advised of, understood and knowingly waived his
right to a jury trial, after discussing it with counsel and
signing a written waiver of jury trial in open court (see CPL
320.10; People v Pazmini, 132 AD3d 1015, 1015 [2015]).
Defendant further argues that a restitution hearing should
be ordered to ascertain the correct amount of restitution to be
paid to the assault victim under the first indictment. However,
as part of the agreement, defendant expressly agreed to pay
restitution to the victim to cover his medial expenses. Given
that defendant never requested a hearing or objected to the
amount awarded at sentencing, this argument is not preserved for
our review (see People v Roshia, 133 AD3d 1029, 1031 [2015]).3
did not desire the court to entertain any other motions.
2
Defendant's postsentencing motions pursuant to CPL
article 440 to vacate the judgment of conviction, among other
things, which County Court denied, are not part of the record on
appeal and are not properly before us.
3
As defense counsel noted at sentencing, a defendant may
later move for resentencing to modify the amount of restitution
(see CPL 420.10, 420.30).
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Also without merit is defendant's contention that he was
deprived of the effective assistance of counsel in that counsel
failed to object or intercede during the plea allocution in order
to ensure that defendant's guilty plea was not the product of
coercion or pressure. Under established law, "a defendant has
been afforded meaningful representation when he or she receives
an advantageous plea and nothing in the record casts doubt on the
apparent effectiveness of counsel" (People v Vonneida, 130 AD3d
1322, 1322 [2015] [internal quotation marks and citations
omitted], lv denied 26 NY3d 1093 [2015]). Here, having
previously rejected a plea offer requiring more prison time and
with his trial imminent, defendant was offered and accepted a
more beneficial agreement. Although the initial plea allocution
was halted when defendant insisted on, and received, rulings on
his pro se motions, the proceedings later resumed and defense
counsel advised County Court that defendant wished to accept the
agreement; defendant repeatedly and unequivocally confirmed his
desire to enter a guilty plea, asserting that it was "[b]ecause I
am guilty" and that he had sufficient time to discuss the plea
with his attorney. Contrary to defendant's claims, neither the
court's remarks nor the pace and sequence of the proceedings
supports a finding that defendant was pressured into entering a
guilty plea and, accordingly, defense counsel cannot be faulted
for not objecting or attempting to intercede. As the record
reflects that counsel pursued appropriate pretrial motions,
negotiated a favorable agreement that included appreciably less
time than the 40-year aggregate prison sentence that defendant
faced if convicted after a trial on the indictments, we find that
defendant received meaningful representation (see People v Caban,
5 NY3d 143, 152 [2005]; People v Beekman, 134 AD3d 1355, 1356-
1357 [2015]).
Finally, given the violent nature of these separate crimes
and inasmuch as the agreed-upon aggregate sentence was
substantially less than the maximum potential consecutive
sentences (see Penal Law §§ 70.00 [2] [d]; 70.02 [3] [b]; 70.25
[2]), we find no abuse of discretion or extraordinary
circumstances that would warrant a reduction of defendant's
sentence in the interest of justice (see CPL 470.15 [3] [c]; [6]
[b]; People v Brooks, 118 AD3d 1123, 1124 [2014], lv denied 24
NY3d 959 [2014]).
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Peters, P.J., Lahtinen, Devine and Mulvey, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court