Opinion
2022–02329 Ind. No. 1585/17
04-19-2023
The PEOPLE, etc., respondent, v. Adam BECKERMAN, appellant.
John F. Carman, Garden City, NY (Matthew W. Brissenden of counsel), for appellant. Anne T. Donnelly, District Attorney, Mineola, NY (Daniel Bresnahan and Hilda Mortensen of counsel), for respondent.
John F. Carman, Garden City, NY (Matthew W. Brissenden of counsel), for appellant.
Anne T. Donnelly, District Attorney, Mineola, NY (Daniel Bresnahan and Hilda Mortensen of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., PAUL WOOTEN, WILLIAM G. FORD, JANICE A. TAYLOR, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Nassau County (Teresa K. Corrigan, J.), rendered February 17, 2022, convicting him of attempted criminal tax fraud in the fifth degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
" ‘[A]n allocution based on a negotiated plea need not elicit from a defendant specific admissions as to each element of the charged crime’ " ( People v. Byard, 195 A.D.3d 745, 746, 145 N.Y.S.3d 401, quoting People v. Goldstein, 12 N.Y.3d 295, 301, 879 N.Y.S.2d 814, 907 N.E.2d 692 ). However, " ‘where a defendant's factual recitation negates an essential element of the crime pleaded to, the court may not accept the plea without making further inquiry to ensure that defendant understands the nature of the charge and that the plea is intelligently entered’ " ( People v. Douglas, 200 A.D.3d 795, 795, 157 N.Y.S.3d 539, quoting People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). Contrary to the defendant's contention, he did not make any statements during the plea allocution which negated an essential element of the crime of attempted criminal tax fraud in the fifth degree (see People v. Duncan, 78 A.D.3d 1193, 912 N.Y.S.2d 283 ). Moreover, the defendant's willful conduct may readily be inferred from the conduct to which he admitted during the plea allocution (see People v. Lovick, 127 A.D.3d 1108, 1109, 5 N.Y.S.3d 878 ).
Further, the defendant's claim of actual innocence was supported only by "generalized and unsubstantiated" assertions which were not sufficient to warrant vacating the plea ( People v. Ford, 44 A.D.3d 1070, 1070, 844 N.Y.S.2d 400 ; see People v. Etienne, 193 A.D.3d 971, 972, 145 N.Y.S.3d 588 ).
"[V]acatur of a plea is warranted where the defendant demonstrates ‘a significant possibility of a conflict of interest ... bearing a substantial relationship to the conduct of the defense’ arising from joint representation of the defendant and another individual" ( People v. Wentland, 191 A.D.3d 704, 707, 139 N.Y.S.3d 356, quoting People v. Recupero, 73 N.Y.2d 877, 879, 538 N.Y.S.2d 234, 535 N.E.2d 287 ). Further, when there is a potential conflict of interest, " ‘it is the defendant's heavy burden to show that a potential conflict actually operated on the defense’ " ( People v. Brown, 33 N.Y.3d 983, 987, 100 N.Y.S.3d 697, 124 N.E.3d 247, quoting People v. Sanchez, 21 N.Y.3d 216, 223, 969 N.Y.S.2d 840, 991 N.E.2d 698 ). Here, while there was a potential conflict of interest based upon the defendant's attorney having previously represented the defendant's wife in connection with the same charges of tax fraud, the defendant failed to demonstrate that the potential conflict actually affected or operated on the conduct of his defense (see People v. Smart, 96 N.Y.2d 793, 795, 726 N.Y.S.2d 343, 750 N.E.2d 45 ; People v. Blake, 212 A.D.3d 411, 181 N.Y.S.3d 78 ; People v. Goodwine, 46 A.D.3d 702, 702–703, 848 N.Y.S.2d 243 ; People v. Rajigah, 265 A.D.2d 580, 581, 697 N.Y.S.2d 646 ). Thus, the County Court did not err in failing to conduct a Gomberg inquiry (see People v. Gomberg, 38 N.Y.2d 307, 379 N.Y.S.2d 769, 342 N.E.2d 550 ), and the defendant was not entitled to vacatur of the plea based upon the potential conflict.
Contrary to the People's contention, the defendant's argument that his sentence was illegal because the County Court imposed restitution in excess of the $10,000 statutory cap for misdemeanor convictions under Penal Law § 60.27(5)(a) was not subject to the preservation rule or foreclosed by the defendant's appeal waiver (see People v. Martinez, 144 A.D.3d 708, 39 N.Y.S.3d 810 ). However, the court was authorized to impose an amount of restitution in excess of $10,000, since the defendant consented to that amount (see Penal Law § 60.27[5][a] ; People v. Simmons, 133 A.D.3d 896, 897, 19 N.Y.S.3d 756 ).
The defendant's remaining contentions either are without merit or need not be reached in light of our determination.
CONNOLLY, J.P., WOOTEN, FORD and TAYLOR, JJ., concur.