Opinion
104097
12-11-2014
The PEOPLE of the State of New York, Respondent, v. Michael J. CAVALLARO, Appellant.
Kevin M. Colwell, Albany, for appellant. D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Kevin M. Colwell, Albany, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Before: McCARTHY, J.P., EGAN JR., LYNCH, DEVINE and CLARK, JJ.
Opinion
CLARK, J.Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered December 23, 2010, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.
While under investigation by the Ulster Regional Gang Enforcement Narcotics Team, defendant sold ecstasy to a confidential informant in March 2009. As part of a controlled buy operation, defendant sold cocaine to a second confidential informant at defendant's residence in January 2010. Investigators then obtained a search warrant for defendant's residence, where they recovered a handgun and various illegal drugs. Thereafter, defendant was charged in an indictment with various offenses arising out of the two drug sales and his possession of the items seized at his residence. Following a hearing, County Court rejected defendant's efforts to suppress physical evidence recovered in the search and statements that he made to police after his arrest. Defendant then pleaded guilty to one count of criminal possession of a controlled substance in the third degree in satisfaction of the indictment and admitted to possessing cocaine at his residence. County Court made no sentencing commitment as part of the plea arrangement and ultimately sentenced defendant, as a second felony offender, to a 10–year prison term followed by three years of postrelease supervision. Defendant appeals, and we now affirm.
Defendant initially contends that probable cause did not support the issuance of the search warrant because a misstatement in the search warrant application, as to when the January 2010 controlled buy occurred, called the reliability of the confidential informant into question. County Court credited, however, the testimony of an investigator that the misstatement in the application was a typographical error that was unconnected to any information provided by the confidential informant. Inasmuch as search warrant applications will “not be read in a hypertechnical manner as if they were entries in an essay contest,” the factual error contained within the application did not impair the warrant's validity ( People v. Hanlon, 36 N.Y.2d 549, 559, 369 N.Y.S.2d 677, 330 N.E.2d 631 [1975] ; see People v. Bowers, 92 A.D.2d 669, 670, 461 N.Y.S.2d 900 [1983] ; People v. Finch, 57 A.D.2d 641, 642, 393 N.Y.S.2d 222 [1977] ). To the extent that defendant otherwise questions the reliability of the confidential informant, evidence of the “controlled buy of drugs at defendant's apartment only days prior to the issuance of the warrant satisfied the reliability prong of the Aguilar–Spinelli test” (People v. Morton, 288 A.D.2d 557, 558, 734 N.Y.S.2d 249 [2001], lv. denied 97 N.Y.2d 758, 742 N.Y.S.2d 619, 769 N.E.2d 365 [2002], cert. denied 537 U.S. 860, 123 S.Ct. 237, 154 L.Ed.2d 99 [2002] ; see People v. Vargas, 72 A.D.3d 1114, 1115–1116, 898 N.Y.S.2d 323 [2010], lv. denied 15 N.Y.3d 758, 906 N.Y.S.2d 831, 933 N.E.2d 230 [2010] ). County Court thus properly found the search warrant to be valid.County Court also acted properly in declining to suppress the statements that defendant made to police. Defendant was promptly transported to the police station after his arrest and was advised of his Miranda rights before any questioning began. The investigator then told defendant, not inaccurately, that the handgun and drugs recovered in his apartment could have belonged to anyone who lived there, and that his live-in girlfriend would face criminal charges if no one took responsibility for possessing those items. Immediately thereafter, defendant admitted that the items were his. Defendant argues that the threat to arrest his girlfriend was coercive, but police are free “to capitalize on a defendant's sense of shame or reluctance to involve his family in a pending investigation absent circumstances which create a substantial risk that a defendant might falsely incriminate himself” (People v. Johnson, 177 A.D.2d 791, 792, 576 N.Y.S.2d 407 [1991] [internal citation omitted]; accord People v. Mateo, 2 N.Y.3d 383, 415–416, 779 N.Y.S.2d 399, 811 N.E.2d 1053 [2004], cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828 [2004] ; see People v. Jackson, 105 A.D.3d 866, 869, 962 N.Y.S.2d 679 [2013], lv. denied 21 N.Y.3d 1016, 971 N.Y.S.2d 498, 994 N.E.2d 394 [2013] ). Thus, under the totality of the circumstances present, we are satisfied that the People met their burden of showing that defendant's statements were voluntary (see People v. Jackson, 105 A.D.3d at 869, 962 N.Y.S.2d 679 ; People v. Setless, 213 A.D.2d 900, 901, 625 N.Y.S.2d 304 [1995], lv. denied 86 N.Y.2d 740, 631 N.Y.S.2d 621, 655 N.E.2d 718 [1995] ; compare People v. Thomas, 22 N.Y.3d 629, 641–642, 985 N.Y.S.2d 193, 8 N.E.3d 308 [2014] ).
Defendant's contention that he was denied the effective assistance of counsel is preserved for review via his motion to withdraw his guilty plea and is properly before us insofar as it implicates the voluntariness of that plea (see People v. Howard, 119 A.D.3d 1090, 1091, 988 N.Y.S.2d 726 [2014], lv. denied 24 N.Y.3d 961, 996 N.Y.S.2d 221, 20 N.E.3d 1001 [2014] ). However, his specific claims of ineffective assistance are notably lacking in record support. Regardless, “[i]n the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel” (People v. Sylvan, 108 A.D.3d 869, 870, 969 N.Y.S.2d 578 [2013], lv. denied 22 N.Y.3d 1091, 981 N.Y.S.2d 676, 4 N.E.3d 978 [2014] [internal quotation marks and citations omitted]; accord People v. Wren, 119 A.D.3d 1291, 1292, 990 N.Y.S.2d 731 [2014] ). The several attorneys who represented defendant over the course of this action entered into an appropriate stipulation in lieu of motions with the People, made pretrial motions, ably cross-examined witnesses at the suppression hearing, and then negotiated a plea that significantly reduced the sentencing exposure that defendant would have faced had he been convicted of all counts in the indictment. We accordingly conclude that defendant received meaningful representation (see People v. Wren, 119 A.D.3d at 1292, 990 N.Y.S.2d 731 ).Finally, the sentence imposed was not harsh and excessive, particularly in light of defendant's extensive criminal background (see People v. Long, 117 A.D.3d 1326, 1327, 986 N.Y.S.2d 670 [2014], lv. denied 24 N.Y.3d 1003, 997 N.Y.S.2d 121, 21 N.E.3d 573 ). Defendant further contends that County Court imposed the sentence in retaliation for his decision to engage in preplea motion practice but, to the extent that argument is properly before us, it is unsupported by the record (see People v. Rorris, 52 A.D.3d 869, 871, 859 N.Y.S.2d 272 [2008], lv. denied 11 N.Y.3d 741, 864 N.Y.S.2d 399, 894 N.E.2d 663 [2008] ).
Defendant's remaining arguments have been examined and are found to be lacking in merit.
ORDERED that the judgment is affirmed.
McCARTHY, J.P., EGAN JR., LYNCH and DEVINE, JJ., concur.