People v. Davis

• Decision Date: 30 April 2021
• Docket Number: 347,KA 16-02151
• Citation: 143 N.Y.S.3d 260 (Mem),193 A.D.3d 1352
• Parties: The PEOPLE of the State of New York, Respondent, v. Jadie M. DAVIS, Defendant-appellant.
• Court: New York Supreme Court — Appellate Division

193 A.D.3d 1352
143 N.Y.S.3d 260 (Mem)

The PEOPLE of the State of New York, Respondent,
v.
Jadie M. DAVIS, Defendant-appellant.

347
KA 16-02151

Supreme Court, Appellate Division, Fourth Department, New York.

April 30, 2021

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (HELEN SYME OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, CURRAN, WINSLOW, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law and as a matter of discretion in the interest of justice by vacating that part of the sentence ordering restitution and by amending the order of protection, specifying that the order of protection in favor of Catherine Clark is to be a no-offensive-contact order, and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty of arson in the second degree ( Penal Law § 150.15 ) and two counts of aggravated family offense (§ 240.75 [1]).

Initially, we agree with defendant that his waiver of the right to appeal is invalid (see People v. Thomas , 34 N.Y.3d 545, 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ; see People v. Josue F. , 191 A.D.3d 1483, 1484, 138 N.Y.S.3d 443 [4th Dept. 2021] ; People v. Davis , 189 A.D.3d 2159, 2159, 134 N.Y.S.3d 899 [4th Dept. 2020] ). Contrary to defendant's contention, the investigator's statements prior to issuing the Miranda warnings to defendant did not vitiate or neutralize the effect of the warnings (cf. People v. Dunbar , 24 N.Y.3d 304, 315-316, 998 N.Y.S.2d 679, 23 N.E.3d 946 [2014], cert denied 575 U.S. 1005, 135 S.Ct. 2052, 191 L.Ed.2d 971 [2015] ), and therefore County Court did not err in refusing to suppress his statements to the police (see People v. Box , 181 A.D.3d 1238, 1239, 119 N.Y.S.3d 650 [4th Dept. 2020], lv denied 35 N.Y.3d 1025, 126 N.Y.S.3d 24, 149 N.E.3d 862 [2020], cert denied ––– U.S. ––––, 141 S. Ct. 1099, 208 L.Ed.2d 548 [2021] ; People v. Jemes , 132 A.D.3d 1361, 1362, 17 N.Y.S.3d 539 [4th Dept. 2015], lv denied 26 N.Y.3d 1110, 26 N.Y.S.3d 768, 47 N.E.3d 98 [2016] ).

Defendant failed to preserve for our review his challenge to the voluntariness of his plea because he did not move to withdraw the plea or to vacate the judgment of conviction (see People v. Shanley , 189 A.D.3d 2108, 2108, 134 N.Y.S.3d 856 [4th Dept. 2020] ). There is a narrow exception to the preservation requirement for the "rare case ... where the defendant's recitation of the facts underlying the crime

143 N.Y.S.3d 261

pleaded to clearly casts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea," thereby imposing upon the trial court "a duty to inquire further to ensure that defendant's guilty plea is knowing and voluntary" ( People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). "Where the court fails in this duty and accepts...