People v. Rhodes

• Decision Date: 10 March 2022
• Docket Number: 110608
• Parties: The PEOPLE of the State of New York, Respondent, v. Clayrissa RHODES, Appellant.
• Court: New York Supreme Court — Appellate Division

203 A.D.3d 1316
163 N.Y.S.3d 329

The PEOPLE of the State of New York, Respondent,
v.
Clayrissa RHODES, Appellant.

110608

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

Calendar Date: January 6, 2022
Decided and Entered: March 10, 2022

163 N.Y.S.3d 330

Linda B. Johnson, Albany, for appellant.

Mary Pat Donnelly, District Attorney, Troy (George J. Hoffman Jr. of counsel), for respondent.

Before: Garry, P.J., Clark, Aarons and Colangelo, JJ.

MEMORANDUM AND ORDER

Colangelo, J.

Appeal from a judgment of the County Court of Rensselaer County (Young, J.), rendered December 4, 2014, convicting defendant upon her plea of guilty of the crimes of robbery in the second degree and petit larceny.

In June 2014, defendant and two others were arrested following the robbery of a convenience store in the City of Troy, Rensselaer County. Defendant was charged with robbery in the second degree and petit larceny. Defendant moved to suppress a showup identification and tangible evidence found in the vehicle in which she was a passenger at the time of her arrest. Following County Court's denial of this motion, defendant pleaded guilty to the crimes as charged with no promise as to sentencing and without waiving her right to appeal. Defendant was sentenced to a prison term of four years to be followed by five years of postrelease supervision for the robbery conviction, and to a concurrent term of one year for her other conviction. Defendant appeals.

Defendant's challenge to the voluntariness of her guilty plea is unpreserved for our review based upon her failure to make an appropriate postallocution motion (see People v. Downs, 194 A.D.3d 1118, 1119, 146 N.Y.S.3d 695 [2021], lv denied

163 N.Y.S.3d 331

37 N.Y.3d 971, 150 N.Y.S.3d 694, 172 N.E.3d 806 [2021] ; People v. Crossley, 191 A.D.3d 1046, 1047, 137 N.Y.S.3d 746 [2021], lv denied 37 N.Y.3d 991, 152 N.Y.S.3d 414, 174 N.E.3d 354 [2021] ). The narrow exception to the preservation requirement does not apply, "as defendant did not make any statements during the plea colloquy that were inconsistent with [her] guilt, negated an element of the charged crime[s] or otherwise called into question the voluntariness of [her] plea" ( People v. Linear, 200 A.D.3d 1498, 1499, 159 N.Y.S.3d 233 [2021] [internal quotation marks and citation omitted]; see People v. Grainger, 199 A.D.3d 1070, 1071, 153 N.Y.S.3d 916 [2021] ). In any event, the factual allocution was sufficient as "defendant was not required to acknowledge committing every element of the pleaded-to offense[s] or provide a factual exposition for each element thereof" ( People v. Apelles, 185 A.D.3d 1298, 1299, 127 N.Y.S.3d 652 [2020] [internal quotation marks, brackets and citations omitted], lv denied 35 N.Y.3d 1092, 131 N.Y.S.3d 287, 155 N.E.3d 780 [2020] ). Moreover, County Court's misstatement that robbery in the second degree was a class D felony – which was quickly remedied when the court correctly stated that it was a class C felony – did not render defendant's plea involuntary (see People v. Phillip, 200 A.D.3d 1108, 1109, 157 N.Y.S.3d 312 [2021] ; People v. Huebsch, 199 A.D.3d 1174, 1175–1176, 156 N.Y.S.3d 597 [2021], lv denied 37 N.Y.3d 1161, 160 N.Y.S.3d 699, 181 N.E.3d 1127 [2022] ).

Defendant next argues that County Court erred in denying her suppression motion, asserting that the stop of the vehicle was improper and that the subsequent showup identification was unduly suggestive. The specific circumstances of the incident are more fully set forth in our decision affirming the judgment of conviction as to codefendant Tyon Smith ( People v. Smith, 185 A.D.3d 1203, 1204–1207, 126 N.Y.S.3d 819 [2020] ), and they need not be repeated at length here. In that decision, this Court addressed the particular arguments raised by defendant here as to the lawfulness of the stop and the showup identification and we found them to be meritless, and we see no reason to deviate from those holdings ( id. ). To the extent that defendant specifically argues that the use of a spotlight rendered the showup identification unduly suggestive, an argument not advanced by Smith on his appeal, we find that the use of a spotlight to illuminate the dimly lit roadway was lawful (see People v. Gilford, 16 N.Y.3d 864, 866–868, 924 N.Y.S.2d 314, 948 N.E.2d 920 [2011] ; People v. Huerta, 141 A.D.3d 602, 603, 35 N.Y.S.3d 433 [2016] ; compare People v. Cruz, 129 A.D.3d 119, 127, 10 N.Y.S.3d 214 [2015], lv denied 26 N.Y.3d 971, 18 N.Y.S.3d 608, 40 N.E.3d 586 [2015] ).

Defendant's claim that she received ineffective assistance of counsel, to the extent that it implicates the voluntariness of her plea, is also unpreserved for our...