People v. Pitcher

• Decision Date: 27 March 2015
• Citation: 126 A.D.3d 1471,6 N.Y.S.3d 352
• Parties: The PEOPLE of the State of New York, Respondent, v. Richard PITCHER, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

126 A.D.3d 1471
6 N.Y.S.3d 352

The PEOPLE of the State of New York, Respondent,
v.
Richard PITCHER, Defendant–Appellant.

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

March 27, 2015.

6 N.Y.S.3d 353

D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of Counsel), for Defendant–Appellant.

William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.

PRESENT: SMITH, J.P., CARNI, SCONIERS, and VALENTINO, JJ.

MEMORANDUM:

126 A.D.3d 1472

Defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the first degree ( Penal Law § 140.30 [2 ] ). Initially, we agree with defendant that his waiver of the right to appeal was not valid (see People v. Trinidad–Ayala, 114 A.D.3d 1229, 1229, 980 N.Y.S.2d 849, lv. denied 23 N.Y.3d 1044, 993 N.Y.S.2d 257, 17 N.E.3d 512 ). Defendant failed to preserve for our review, however, his challenge to the factual sufficiency of the plea colloquy (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Spears, 106 A.D.3d 1534, 1535, 964 N.Y.S.2d 452, affd. 24 N.Y.3d 1057, 999 N.Y.S.2d 818, 24 N.E.3d 1082 ). Contrary to defendant's contention, this case does not fall within the rare exception to the preservation requirement set forth in Lopez because nothing in the plea allocution calls into question the voluntariness of the plea or casts "significant doubt" upon his guilt (

6 N.Y.S.3d 354

id. at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; see People v. Lewandowski, 82 A.D.3d 1602, 1602, 919 N.Y.S.2d 623 ). In any event, even assuming, arguendo, that defendant's initial hesitation to implicate his codefendant in the crime called into question the voluntariness of defendant's plea, we conclude on the record before us that County Court fulfilled its "duty to inquire further to ensure that defendant's guilty plea [was] knowing and voluntary" ( Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; see People v. Mitchell, 48 A.D.3d 1081, 1082, 849 N.Y.S.2d 813, lv. denied 10 N.Y.3d 867, 860 N.Y.S.2d 493, 890 N.E.2d 256 ).

Defendant failed to move to withdraw his plea, and thus he failed to preserve for our review his further contention that his plea was coerced by the court (see People v. Carlisle, 50 A.D.3d 1451, 1451, 856 N.Y.S.2d 410, lv. denied 10 N.Y.3d 957, 863 N.Y.S.2d 141, 893 N.E.2d 447 ). In any event, that contention is belied by the record because, during the plea proceeding, defendant denied that he had been threatened or otherwise pressured into pleading guilty (see People v. Worthy, 46 A.D.3d 1382, 1382, 847 N.Y.S.2d 806, lv. denied 10 N.Y.3d 773, 854 N.Y.S.2d 334, 883 N.E.2d 1269 ; People v. Gradia, 28 A.D.3d 1206, 1206–1207, 812 N.Y.S.2d 922, lv. denied 7 N.Y.3d 756, 819 N.Y.S.2d 882, 853 N.E.2d 253 ). Furthermore, the court did not coerce defendant into pleading guilty merely by informing him of the range of sentences that he faced if he proceeded to trial and was convicted (see People v. Boyde, 71 A.D.3d 1442, 1443, 897 N.Y.S.2d 570, lv. denied 15 N.Y.3d 747, 906 N.Y.S.2d 820, 933 N.E.2d 219 ; People v. Lando, 61 A.D.3d 1389, 1389, 876 N.Y.S.2d 923, lv. denied 13 N.Y.3d 746, 886 N.Y.S.2d 100, 914 N.E.2d 1018 ), or by commenting on the strength of the People's evidence against him (see generally People v. Hamilton, 45 A.D.3d 1396, 1396, 844 N.Y.S.2d 797, lv. denied 10 N.Y.3d 765, 854 N.Y.S.2d 327, 883 N.E.2d 1262 ; People v. Campbell, 236 A.D.2d 877, 878, 653 N.Y.S.2d 758 ). In addition, "the fact that defendant was required ‘to accept or reject the plea offer within a short time period does not amount to coercion’ " ( People v. Irvine, 42 A.D.3d 949, 949, 838 N.Y.S.2d 765, lv. denied 9 N.Y.3d 962, 848 N.Y.S.2d 31, 878 N.E.2d 615 ; see People v. Mason, 56 A.D.3d 1201, 1202, 867 N.Y.S.2d 609, lv. denied 11 N.Y.3d 927, 874 N.Y.S.2d 12, 902 N.E.2d 446 ).

We reject the further contention of defendant that the court

126 A.D.3d 1473

erred in determining that he was not entitled to receive the benefit of a favorable sentencing provision of the plea agreement, which required him to cooperate with the People in the prosecution of his codefendant. At the time of the plea, the court...