Opinion
2013-1145 W CR
02-22-2016
The People of the State of New York, Respondent, v. Riley S. Farmer, Appellant.
PRESENT: :
Appeal from a judgment of the Justice Court of the Village of Tarrytown, Westchester County (Kyle C. McGovern, J.), rendered March 13, 2013. The judgment convicted defendant, upon his plea of guilty, of petit larceny. The appeal from the judgment brings up for review an order of the same court dated March 13, 2013 denying defendant's motion to withdraw his guilty plea.
ORDERED that the judgment of conviction is affirmed.
On December 14, 2011, defendant pleaded guilty to petit larceny (Penal Law § 155.25), a class A misdemeanor, based on an incident that had occurred on or about August 4, 2011, in which he had stolen various items from a privately owned garage in the Village of Tarrytown. The Justice Court indicated that, if defendant paid $500 in restitution on or before the date of sentence, it would sentence defendant to time served. If defendant failed to do so, it would impose a sentence of nine months' imprisonment and a $500 civil judgment, representing the unpaid restitution, and issue a five-year order of protection in favor of the victim. Defendant signed a misdemeanor conviction waiver of rights form, in which he waived, among other things, his right to appeal.
Defendant did not appear in court on the sentencing date. He was arrested approximately nine months later on a bench warrant. On January 23, 2013, defendant moved to withdraw his plea pursuant to CPL 220.60 (3). On March 13, 2013, the Justice Court denied the motion, imposed an enhanced sentence of one year of incarceration, entered a civil judgment, and issued an order of protection in favor of the victim and against defendant.
Defendant's contentions on appeal—that his motion to withdraw his guilty plea should have been granted because his plea was not knowingly, voluntarily, and intelligently entered; that the Justice Court never informed him that it could impose an enhanced sentence of up to one year of incarceration; that he was denied the effective assistance of counsel; that the enhanced sentence imposed was harsh and excessive; and that the court should not have issued an order of protection and should not have entered a civil judgment—survive a waiver of a right to appeal (see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Hassett, 119 AD3d 1443, 1444 [2014]; People v Shorter, 106 AD3d 1115 [2013]; People v Robinson, 43 Misc 3d 129[A], 2014 NY Slip Op 50530[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]). In any event, despite defendant's extensive experience with the criminal justice system, neither the Justice Court, nor defendant's counsel, nor the misdemeanor conviction waiver of rights form adequately explained the nature of the right to appeal to defendant, i.e., that it is separate and distinct from the rights automatically forfeited upon a plea of guilty, which explanation is required to render the purported waiver of the right to appeal valid ( see People v Bradshaw, 18 NY3d 257, 264-267 [2011]; People v Lopez, 6 NY3d 248, 256 [2006]; People v Callahan, 80 NY2d 273, 280 [1992]; People v Seaberg, 74 NY2d at 11; People v Van Clief, 122 AD3d 1062 [2014]; People v Brown, 122 AD3d 133, 137-142 [2014]; People v Loper, 115 AD3d 875, 877 [2014]; People v Manning, 36 Misc 3d 22, 24 [App Term, 2d Dept, 9th & 10th Jud Dists 2012]; People v Delvecchio, 34 Misc 3d 142[A], 2012 NY Slip Op 50091[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2012]; cf. People v Sanders, 25 NY3d 337, 339-342 [2015]).
Defendant's contention that his motion to withdraw his guilty plea should have been granted because his plea was not knowingly, voluntarily, and intelligently entered, as he had not been provided with medication for his bipolar disorder, is based solely on conclusory allegations. In support of his claim, defendant submitted only an unsworn letter by a rehabilitation counselor indicating that no medication had been prescribed for defendant at the time of his plea (see People v Ramos, 77 AD3d 773, 774 [2010]; see also People v Wolf, 88 AD3d 1266, 1267 [2011]; cf. People v Borom, 55 AD3d 1041, 1041-1042 [2008]). Even if defendant had a history of mental difficulties that "arose from conditions of depression and bipolar disorder, for which he had been receiving treatment," that does "not necessarily render [him] unable to enter a knowing, voluntary and intelligent plea" (People v Sylvan, 108 AD3d 869, 871 [2013]; see People v Chavis, 117 AD3d 1193, 1194-1195 [2014]). Furthermore, as counsel negotiated a favorable plea agreement, and nothing in the record casts doubt upon counsel's effectiveness, we find that defendant was provided with meaningful representation under both the federal standard (see Strickland v Washington, 466 US 668 [1984]; People v Sanchez, 124 AD3d 685, 687 [2015]) and the New York standard (see People v Parilla, 8 NY3d 654, 659-660 [2007]; People v Jackson, 128 AD3d 1279 [2015]; People v Sanchez, 124 AD3d at 687; People v Cavallare, 123 AD3d 1221, 1223 [2014]; People v Ingram, 80 AD3d 713, 714 [2011]; People v Majors, 73 AD3d 1382, 1383 [2010]). Thus, the Justice Court properly denied defendant's motion to withdraw his guilty plea.
The Justice Court never informed defendant that a condition of his plea was that he be present in court on the scheduled sentencing date, and that he could be sentenced to a term of up to one year of incarceration if he was absent. The Justice Court only informed defendant that he would face a sentence of nine months if he did not pay $500 in restitution by the sentencing date. The written waiver of rights form did not indicate the maximum term of the enhanced sentence, and it did not contain an adequate Parker warning regarding the consequences of failing to appear at sentencing (see People v Parker, 57 NY2d 136, 141 [1982]). However, defendant's claim is unpreserved for appellate review, because he did not object to the enhanced sentence of one year and did not move to withdraw his plea of guilty on that basis (see People v Aliano, 116 AD3d 874, 875 [2014]; People v Scoca, 38 AD3d 801 [2007]). In any event, defendant's claim has been rendered academic with respect to the imposition of an enhanced sentence, because he has served his sentence and has been released from custody (see People v King, 123 AD3d 738 [2014]; People v Nicholson, 31 AD3d 468 [2006]; People v Pompi, 31 Misc 3d 145[A], 2011 NY Slip Op 50936[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011]; People v Canada, 16 Misc 3d 132[A], 2007 NY Slip Op 51481[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2007]). His claim regarding the order of protection is without merit, as an order of protection is "not punitive in nature and [is] not necessarily dependent on, or the result of, a plea agreement" (People v Harnett, 72 AD3d 232, 235 [2010], affd 16 NY3d 200 [2011]; see People v Nieves, 2 NY3d 310, 316 [2004]; People v Curry, 123 AD3d 1381 [2014]). To the extent that defendant's claim encompasses the restitution component of the sentence, it is unpreserved for appellate review (see People v Jerome, 110 AD3d 739, 740 [2013]). In any event, the court did not increase the amount of restitution in imposing the enhanced sentence.
Accordingly, the judgment of conviction is affirmed.
Tolbert, J.P., Garguilo and Connolly, JJ., concur. Decision Date: February 22, 2016