People v. Atwood

• Decision Date: 01 July 2004
• Docket Number: 15100.
• Citation: 9 A.D.3d 512,2004 NY Slip Op 05690,779 N.Y.S.2d 646
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. KAREN E. ATWOOD, Appellant.
• Court: New York Supreme Court — Appellate Division

9 A.D.3d 512

779 N.Y.S.2d 646

2004 NY Slip Op 05690

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. KAREN E. ATWOOD, Appellant.

15100.

Appellate Division of the Supreme Court of the State of New York, Third Department.

July 1, 2004

Appeal from a judgment of the County Court of Warren County (Austin, J.), rendered January 8, 2003, convicting defendant upon her plea of guilty of the crimes of grand larceny in the third degree and falsifying business records in the first degree (nine counts).

SPAIN, J.P.

In November 2002, defendant entered a plea of guilty to the crimes of grand larceny in the third degree and nine counts of falsifying business records in the first degree, all of the pending¹ charges in an indictment. The charges related to her theft of approximately $35,000 from the Glens Falls Civic Center and conduct in making false entries in its box office summaries to conceal the theft while employed there by a temporary agency. Upon these convictions, she was ordered to pay restitution and sentenced to a prison term of 2 to 6 years on the grand larceny count, and to lesser concurrent terms on the remaining counts.

Previously, in August 2002, defendant had pleaded guilty to all of the same charges, but was permitted to withdraw that plea in September 2002, as promised, when County Court indicated after receipt of the presentence report that it intended to impose a prison sentence in excess of one year. County Court thereafter denied defendant's motion to compel the court to impose a one-year jail sentence which defendant argued had been agreed to in the initial plea deal and was not undermined by the presentence report. After a Huntley hearing, County Court also denied that prong of defendant's motion to suppress² a written statement that she provided to police following her February 2002 arrest on these charges. Defendant now appeals from the judgment rendered upon her November 2002 plea, and we affirm.

Initially, defendant's entry of a valid guilty plea forfeited her right to challenge any aspect of County Court's evidentiary Molineux ruling (see People v Barrier, 7 AD3d 885 [2004]; People v Mead, 198 AD2d 612, 613 [1993], lv denied 82 NY2d 899 [1993]; see also People v Campbell, 73 NY2d 481, 486 [1989]). Next, defendant pleaded guilty while her motion was pending to suppress her statement to police based upon lack of probable cause to arrest her without a warrant, forfeiting this issue for appellate review (see People v Williams, 6 AD3d 746, 747 [2004]; People v Huff, 257 AD2d 678, 679 [1999], lv denied 93 NY2d 854 [1999]; see also People v Fernandez, 67 NY2d 686, 688 [1986]; cf. CPL 710.70 [2]). Defendant's contention that County Court actually denied the probable cause claim raised in her omnibus papers is belied by the record. At the Huntley hearing at which the arresting officer was the sole witness to testify, the only voluntariness issue raised or addressed related to the postarrest advisement of defendant's Miranda rights prior to her written statement and to the circumstances of giving that statement (see People v Huntley, 15 NY2d 72 [1965]; see also People v Briggs, 38 NY2d 319, 322-323 [1975]; CPL 60.45 [1], [2] [a]; 710.20 [3]); no issue was raised at the hearing related to probable cause for her arrest until closing arguments (see CPL 60.45 [2] [b] [ii]; Dunaway v New York, 442 US 200 [1979]). In its Huntley decision denying suppression, the court clearly stated that it would resolve the undecided probable cause issue on a future scheduled date. There can be no question that when defendant thereafter pleaded guilty, she was on notice that her motion to suppress based upon the lack of probable cause was still pending and, accordingly, her guilty plea operates as a waiver of that undecided motion (see People v Fernandez, supra; People v Williams, supra).

Finally, defendant's claims of entitlement to the terms of the initial plea (i.e., a jail term of one year or less), which was later vacated at defendant's request, were...