People v. Williford ( 2015 )


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  •                            State of New York
    Supreme Court, Appellate Division
    Third Judicial Department
    Decided and Entered: January 22, 2015                    105758
    ________________________________
    THE PEOPLE OF THE STATE OF
    NEW YORK,
    Respondent,
    v                                      MEMORANDUM AND ORDER
    PAUL WILLIFORD,
    Appellant.
    ________________________________
    Calendar Date:    November 12, 2014
    Before:   Peters, P.J., Lahtinen, Garry, Rose and Lynch, JJ.
    __________
    Joseph Nalli, Fort Plain, for appellant.
    Robert M. Carney, District Attorney, Schenectady (Gerald A.
    Dwyer of counsel), for respondent.
    __________
    Lynch, J.
    Appeal from a judgment of the County Court of Schenectady
    County (Milano, J.), rendered September 5, 2013, convicting
    defendant upon his plea of guilty of the crime of attempted
    burglary in the first degree.
    In satisfaction of a 16-count indictment, defendant pleaded
    guilty to one count of attempted burglary in the first degree and
    waived his right to appeal. Pursuant to the plea agreement,
    County Court sentenced defendant as a second violent felony
    offender to a prison term of nine years, with five years of
    postrelease supervision. Defendant appeals.
    Defendant challenges the voluntariness of both his plea and
    appeal waiver. At the outset of the plea proceeding, County
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    Court stated the conditions of the guilty plea, including
    defendant's waiver of his right to appeal. The record shows that
    defendant executed a written appeal waiver in open court with
    counsel present. The waiver, in part, states that defendant has
    a right to appeal from a conviction following a plea and
    sentence, but as part of the plea agreement, he was waiving that
    right to appeal. While defendant acknowleged that he was waiving
    "any and all rights and remedies . . . in connection with this
    case," this acknowledgment preceded defendant's review of the
    appeal waiver. At no point did the court distinguish on the
    record the right to appeal from those rights forfeited upon a
    plea of guilty (see People v Lopez, 6 NY3d 248, 256 [2006]). Nor
    was there any colloquy between the court, defendant and counsel
    concerning the appeal waiver. As a result, there is no record
    confirmation that defendant actually understood the implications
    of the appeal waiver (see People v Bradshaw, 18 NY3d 257, 259-261
    [2011]; People v Callahan, 80 NY2d 273, 283 [1992]).
    Accordingly, we hold that the appeal waiver is unenforceable.
    Having moved to withdraw his plea, defendant's challenge to
    the sufficiency of the allocution, claimed misunderstanding as to
    the plea terms and contentions of coercion are preserved for
    review (see People v Mydosh, 117 AD3d 1195, 1196 [2014], lv
    denied 24 NY3d 963 [2014]; People v Waters, 80 AD3d 1002, 1003
    [2011], lvs denied 16 NY3d 858, 864 [2011]; compare People v
    Ross, 117 AD3d 1342, 1342-1343 [2014]). During the allocution,
    County Court used the words "building" and "dwelling"
    interchangeably, despite the fact that burglary in the first
    degree requires entry into a dwelling (see Penal Law § 140.30),
    as opposed to entry into a building (see Penal Law §§ 140.20,
    140.25). In so doing, the court specified the actual address,
    and defendant admitted his intentions of stealing a weapon from
    the resident. Since a dwelling means a building usually occupied
    by a person lodging overnight (see Penal Law § 140.00), the use
    of both terms did not negate an element of the charged offense
    (see People v Seeber, 4 NY3d 780, 781 [2005]). Defendant entered
    the plea in consultation with counsel, and there is nothing in
    this record to call into question his admitted guilt. As such,
    we reject defendant's contention that the allocution was
    insufficient (see People v Seeber, 4 NY3d 780, 781 [2005]).
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    As for defendant's professed confusion over the proposed
    sentence cap, the record shows that defendant rejected plea
    offers on July 11, 2012 and October 4, 2012 that included a
    proposed cap. During the October 25, 2012 plea proceeding,
    County Court expressly informed defendant that the maximum
    sentence for a plea to a charge of attempted burglary in the
    first degree, as a second violent felony offender, was 15 years,
    but that the offer was to cap the sentence at 10 years. When
    defendant continued to express uncertainty, the court and defense
    counsel engaged in an extensive explanation, specifying that the
    proposed determinate sentence would be within a range of 7 to 10
    years, subject to the court's discretion. Defendant confirmed
    that he understood. Defendant's further claim that he was
    coerced into pleading guilty is belied by the record. He
    admitted that his plea was made voluntarily and without coercion,
    and that he was satisfied with counsel's representation, and we
    perceive nothing in this record to suggest otherwise.
    Accordingly, we conclude that defendant's plea was knowingly,
    intelligently and voluntarily made (see People v Oakes, 99 AD3d
    1115, 1116 [2012], lv denied 20 NY3d 1013 [2013]).
    Next, defendant maintains that County Court erred in
    denying his motion to suppress items seized from his vehicle,
    which included the victim's checkbook, contending that he was
    under the influence of drugs and incapable of consenting to the
    search. This claim may be raised following a guilty plea (see
    CPL 710.70 [2]). The People bear a heavy burden to establish
    that the consent was freely and voluntarily given based on the
    totality of the circumstances (see People v Gonzalez, 39 NY2d
    122, 128-129 [1976]; People v Dobson, 285 AD2d 737, 738 [2001],
    lvs denied 97 NY2d 655, 658 [2001]). The detective who testified
    at the Mapp hearing stated that defendant was handcuffed to a
    desk during the interview and was read his Miranda warnings.
    Defendant verbally consented to having his vehicle searched and
    then, at the detective's request, signed the consent form.
    Defendant was indisputably in custody at this point and the
    detective conceded that he neither read the consent form to
    defendant nor advised him of his right to refuse to consent.
    These factors, however, do not preclude a finding of voluntary
    consent (see People v Gonzalez, 39 NY2d at 128). The detective
    acknowledged that defendant "seemed to be coming off of whatever
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    he was on," but also explained that defendant was "pretty fluent
    in what he was saying" and "definitely not out of it to the point
    where he didn't understand." After watching a video of the
    interview, County Court determined that defendant was coherent
    and that the manner in which the detective asked for defendant's
    permission to search his vehicle was not coercive (see People v
    Adams, 26 NY2d 129, 137-138 [1970], cert denied 
    399 U.S. 931
    [1970]; People v Williams, 40 AD3d 1364, 1365 [2007], lv denied 9
    NY3d 927 [2007]; People v Dlugos, 237 AD2d 754, 756 [1997], lv
    denied 89 NY2d 1091 [1997]). Viewed in totality, and according
    deference to the factual findings of the suppression court, we
    find that County Court did not abuse its discretion in finding
    that the consent was freely given.
    Finally, given defendant's extensive criminal history and
    the fact that his sentence was actually less than the sentence
    agreed to as part of the plea bargain, the sentence was not an
    abuse of discretion and we do not find extraordinary
    circumstances warranting a reduction thereof (see People v
    Urbina, 1 AD3d 717, 718 [2003], lv denied 1 NY3d 602 [2004]).
    Peters, P.J., Lahtinen, Garry and Rose, JJ., concur.
    ORDERED that the judgment is affirmed.
    ENTER:
    Robert D. Mayberger
    Clerk of the Court
    

Document Info

Docket Number: 105758

Judges: Lynch, Peters, Lahtinen, Garry, Rose

Filed Date: 1/22/2015

Precedential Status: Precedential

Modified Date: 11/1/2024