People v. Morehouse

• Decision Date: 02 June 2016
• Parties: The PEOPLE of the State of New York, Respondent, v. Scott MOREHOUSE, Appellant.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 1202
33 N.Y.S.3d 491
2016 N.Y. Slip Op. 04256

The PEOPLE of the State of New York, Respondent,
v.
Scott MOREHOUSE, Appellant.

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

June 2, 2016.

33 N.Y.S.3d 492

Susan Patnode, Rural Law Center of New York, Castleton (George J. Hoffman Jr. of counsel), for appellant.

Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, GARRY, CLARK and MULVEY, JJ.

LAHTINEN, J.

140 A.D.3d 1202

Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered October 9, 2013, convicting defendant upon his plea of guilty of the crime of criminal possession of stolen property in the fourth degree.

In 2011, defendant pleaded guilty to forgery in the second degree in full satisfaction of an eight-count indictment and executed a waiver of his right to appeal, and

33 N.Y.S.3d 493

County Court sentenced him to a prison term of 2 to 4 years (109 A.D.3d 1022, 1022, 972 N.Y.S.2d 729 [2013] ). On appeal, this Court found that defendant had made a statement during his allocution that implicated the voluntariness of his guilty plea, vacated defendant's guilty plea and remitted the matter to County Court (id. at 1022–1023, 972 N.Y.S.2d 729 ). Thereafter, following the denial of defendant's request for substitute counsel, defendant entered an Alford plea (North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 [1970] ) to one count of criminal possession of stolen property in the fourth degree in full satisfaction of the eight-count indictment and executed in

140 A.D.3d 1203

open court a written waiver of the right to appeal. Consistent with the plea agreement, County Court sentenced defendant to a prison term of 1 ½ to 3 years, with credit for prison time already served, and ordered restitution in the amount of $1,345. Defendant now appeals.

While defendant's challenge to his Alford plea survives his appeal waiver to the extent that it implicates the voluntariness of his plea, it is unpreserved as he failed to make an appropriate postallucution motion, and the narrow exception to the preservation rule is inapplicable (see People v. Hughes, 134 A.D.3d 1301, 1301, 21 N.Y.S.3d 483 [2015], lv. denied 27 N.Y.3d 966, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2016] ; People v. Dale, 115 A.D.3d 1002, 1007, 981 N.Y.S.2d 821 [2014] ; People v. Fallen, 106 A.D.3d 1118, 1119, 963 N.Y.S.2d 777 [2013], lv. denied 22 N.Y.3d 1156, 984 N.Y.S.2d 640, 7 N.E.3d 1128 [2014] ; People v. Ture, 94 A.D.3d 1163, 1164, 941 N.Y.S.2d 530 [2012], lv. denied 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218 [2012] ). In any event, were the issue properly before us, we would find defendant's contention that County Court erred in accepting his Alford plea unavailing. Here, the record reveals that County Court ensured that defendant understood the rights that he knowingly and voluntarily relinquished by pleading guilty, that he had the opportunity to speak with his attorney before pleading guilty and that his plea was “the product of a voluntary and rational choice” to avoid the risks of trial and the possibility of consecutive sentences for numerous convictions (Matter of Silmon v. Travis, 95 N.Y.2d 470, 475, 718 N.Y.S.2d 704, 741 N.E.2d 501 [2000] ; see People v. Ture, 94 A.D.3d at 1164, 941 N.Y.S.2d 530 ; People v. Andrews, 78 A.D.3d 1229, 1233, 911 N.Y.S.2d 221 [2010], lv...