People v. Morehouse

LAHTINEN, J.

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. 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 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. denied 16 N.Y.3d 827, 921 N.Y.S.2d 191, 946 N.E.2d 179 [2011] ).

Similarly, even if defendant's contention that County Court failed to make an adequate inquiry before denying his request for substitute counsel survived his appeal waiver by implicating the voluntariness of his guilty plea (see People v. Rolfe, 83 A.D.3d 1219, 1220, 920 N.Y.S.2d 856 [2011], lv. denied 17 N.Y.3d 809, 929 N.Y.S.2d 569, 953 N.E.2d 807 [2011] ), defendant failed to preserve this claim by moving to withdraw his plea (see CPL 220.60 [3 ] ). In any event, County Court's ample inquiry into the basis for defendant's request for substitute counsel revealed nothing more than defendant's personal animus towards his trial attorney, and defendant failed to articulate any “conflict of interest or other irreconcilable conflict” that affected counsel's representation of him (People v. Stevenson, 112 A.D.3d 989, 990, 976 N.Y.S.2d 304 [2013], lv. denied 22 N.Y.3d 1159, 984 N.Y.S.2d 643, 7 N.E.3d 1131 [2014] [internal quotation marks omitted]; accord. People v. Sides, 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990] ). Accordingly, were this issue before us, we would find that defendant failed to demonstrate good cause for the appointment of substitute counsel, and, therefore, County Court did not abuse its discretion in denying his request (see People v. Stevenson, 112 A.D.3d at 990–991, 976 N.Y.S.2d 304 ; People v. Rolfe, 83 A.D.3d at 1220, 920 N.Y.S.2d 856 ).

Finally, defendant's claim that there is a lack of support in the record for the amount of restitution ordered is also unpreserved for our review because the plea agreement and appeal waiver specified $991 as the amount of restitution to be imposed, and defendant failed to request a hearing or challenge that amount during sentencing (cf. People v. Robinson, 133 A.D.3d 1043, 1044, 20 N.Y.S.3d 454 [2015] ; People v. Gardner, 129 A.D.3d 1386, 1388, 12 N.Y.S.3d 353 [2015] ). Nevertheless, the People concede in their brief, and we agree, that the $1,345 in restitution ordered by County Court exceeds the $991 that was specified in the plea agreement and in the appeal waiver signed by defendant. We therefore deem it appropriate to exercise our interest of justice jurisdiction to take corrective action and modify the judgment by reversing the sentence only insofar as it directs defendant to pay restitution in the amount of $1,345 and remit the matter to County Court for the imposition of restitution in the correct amount (see People v. Gardner, 129 A.D.3d at 1388, 12 N.Y.S.3d 353 ; People v. Lyman, 119 A.D.3d 968, 970, 988 N.Y.S.2d 717 [2014] ).

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reversing so much thereof as directed defendant to pay restitution in the amount of $1,345; matter remitted to the County Court of Warren County for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.

PETERS, P.J., GARRY, CLARK and MULVEY, JJ., concur.