People v. McNamara

• Decision Date: 08 February 2013
• Parties: The PEOPLE of the State of New York, Respondent, v. David F. McNAMARA, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

103 A.D.3d 1273

958 N.Y.S.2d 925

2013 N.Y. Slip Op. 00873

The PEOPLE of the State of New York, Respondent,

v.David F. McNAMARA, Defendant–Appellant.

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

Feb. 8, 2013.

Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, A.J.), rendered October 25, 2011. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a forged instrument in the second degree and criminal sale of a controlled substance in the fourth degree.

David P. Elkovitch, Auburn, for Defendant–Appellant.

Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of Counsel), for Respondent.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a forged instrument in the second degree (Penal Law § 170.25) and criminal sale of a controlled substance in the fourth degree (§ 220.34[1] ). Defendant concededly waived his right to appeal, which forecloses his present challenge to the severity of his sentence ( see People v. Hubert, 100 A.D.3d 1443, 1444, 953 N.Y.S.2d 536).

Defendant further contends that his federal constitutional rights were violated when the Cayuga County Probation Department conducted his presentence interview in the absence of counsel and that his resulting statements should have therefore been suppressed and stricken from the presentence report. Even assuming, arguendo, that this contention survives defendant's waiver of his right to appeal, we nevertheless reject it; the federal constitution does not entitle a defendant to the presence of counsel at that stage of a criminal proceeding ( see United States v. Tisdale, 952 F.2d 934, 939–940;United States v. Jackson, 886 F.2d 838, 844;see also People v. Cortijo, 291 A.D.2d 352, 352, 739 N.Y.S.2d 19,lv. denied 98 N.Y.2d 674, 746 N.Y.S.2d 463, 774 N.E.2d 228). In any event, defendant was sentenced in accordance with a plea agreement and sentencing promise that preceded both the presentence interview and the preparation of the presentence report. Thus, any error in the court's refusal to suppress his statements therein is harmless ( see People v. Williamson, 72 A.D.3d 1339, 1339, 900 N.Y.S.2d 165,lv. denied15 N.Y.3d 779, 907 N.Y.S.2d 468, 933 N.E.2d 1061;People v. Vaughan, 20 A.D.3d 940, 941–942, 798 N.Y.S.2d 289,lv. denied 5 N.Y.3d 857, 806 N.Y.S.2d 177, 840 N.E.2d 146;People v. Vasquez, 256 A.D.2d 83, 83, 682 N.Y.S.2d 571,lv. denied 93 N.Y.2d 880...