Opinion
No. 570651/18
04-17-2023
The People of the State of New York, Respondent, v. Mark Fugate, Defendant-Appellant.
Unpublished Opinion
PRESENT: Brigantti, J.P., Tisch, James, JJ.
PER CURIAM.
Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Kate Paek, J. at hearing; Joanne B. Watters, J. at plea; Heidi C. Cesare, J. at sentencing), rendered August 2, 2018, convicting him, upon his plea of guilty, of forcible touching, and imposing sentence.
Judgment of conviction (Kate Paek, J. at hearing; Joanne B. Watters, J. at plea; Heidi C. Cesare, J. at sentencing), rendered August 2, 2018, affirmed.
The hearing court correctly determined that defendant knowingly and voluntarily waived his Miranda rights before his statements (see People v Williams, 62 N.Y.2d 285, 289 [1984]). The prosecutor's limited introductory remarks prior to administering the Miranda warnings - informing defendant that he could talk "if you want to"; that her job was "to investigate all the arrests that come through on a certain day of the week and see if there's anything there"; and that she wanted to hear "both sides of the story" - were not of the type condemned in People v Dunbar (24 N.Y.3d 304 [2014], cert denied 575 U.S. 1005 [2015]), or that otherwise "undermined the effect of the warnings" (People v Almodovar, 142 A.D.3d 916 [2016], lv denied 28 N.Y.3d 1070 [2016]; see People v Murphy, 168 A.D.3d 632, 633 [2019], lv denied 33 N.Y.3d 952 [2019]). In any event, given the generally exculpatory nature of the statements, any error in receiving the statements was harmless.
Our review of the record indicates that defendant's guilty plea was entered knowingly, voluntarily, and intelligently (see People v Conceicao, 26 N.Y.3d 375 [2015]). In satisfaction of an accusatory instrument charging sexual abuse in the third degree (see Penal Law § 130.55) and forcible touching (see Penal Law § 130.52[1]), defendant agreed to plead guilty to forcible touching in exchange for a sentence of a conditional discharge, which required him to complete a three-month outpatient alcohol program. In response to the court's questioning, defendant stated that he was pleading guilty freely and voluntarily, that he had an opportunity to discuss his case with counsel, and waived specific constitutional rights. At sentencing, defendant acknowledged that he was being sentenced to a conditional discharge requiring him to lead a law-abiding life for one year and to enroll in and complete a three-month outpatient alcohol program. Defendant also executed a form acknowledging that he was being sentenced to a "one year conditional discharge" and had received a written copy of the terms of the conditional discharge and its expiration date (see CPL 410.10[1]; see also People v Bush, 38 N.Y.3d 66 [2022]).
In any event, the only relief defendant requests is dismissal of the accusatory instrument, rather than vacatur of the plea, and he expressly requests that this Court affirm his conviction if it does not grant dismissal. Since it cannot be said that no penological purpose would be served by reinstating the charges (see People v Conceicao, 26 N.Y.3d at 385 n), dismissal is not warranted and we therefore affirm.