People v. Harris

• Decision Date: 19 May 2016
• Docket Number: 106558.
• Citation: 139 A.D.3d 1244,2016 N.Y. Slip Op. 03908,34 N.Y.S.3d 179
• Parties: The PEOPLE of the State of New York, Respondent, v. Norman L. HARRIS, Appellant.
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 1244

34 N.Y.S.3d 179

2016 N.Y. Slip Op. 03908

The PEOPLE of the State of New York, Respondent,

v.Norman L. HARRIS, Appellant.

106558.

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

May 19, 2016.

David M. Kaplan, Penfield, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, EGAN JR., DEVINE and MULVEY, JJ.

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 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 2 ? 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 A.D.3d 704, 704, 790 N.Y.S.2d 307 [2005], lv. denied 4 N.Y.3d 887, 798 N.Y.S.2d 733, 831 N.E.2d 978 [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 A.D.3d 847, 848, 804 N.Y.S.2d 140 [2005], lvs. denied 6 N.Y.3d 810, 811, 812 N.Y.S.2d 449, 845 N.E.2d 1280 [2006] ; People v. Harler, 296 A.D.2d 712, 713–714, 744 N.Y.S.2d 916 [2002] ), defendant abandoned any challenge to the lack of a ruling on his motion (see

People v. Rodriguez, 50 N.Y.2d 553, 557–558, 429 N.Y.S.2d 631, 407 N.E.2d 475 [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 A.D.3d 1098, 1099, 987 N.Y.S.2d 247 [2014] ; People v. Melendez, 48 A.D.3d 960, 960, 852 N.Y.S.2d 440 [2008], lv. denied 10 N.Y.3d 962, 863 N.Y.S.2d 146, 893 N.E.2d 452 [2008]

).¹

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 A.D.3d 1349, 1350, 22 N.Y.S.3d 617 [2015], lvs. denied 27 N.Y.3d 962, –––N.Y.S.3d ––––, ––– N.E.3d –––– [2016], 27 N.Y.3d 963, ––– N.Y.S.3d ––––, –––N.E.3d –––– [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 N.Y.3d 359, 363–364, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013] ; People v. Guyette, 121 A.D.3d 1430, 1431, 995 N.Y.S.2d 395 [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 A.D.3d 1015, 1015, 18 N.Y.S.3d 359 [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 A.D.3d 1029, 1031, 19 N.Y.S.3d 373 [2015]

).³

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 A.D.3d 1322, 1322, 13 N.Y.S.3d 708 [2015]

[internal quotation marks and citations omitted], lv. denied 26 N.Y.3d 1093, 23 N.Y.S.3d 650, 44 N.E.3d 948 [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...