Opinion
11-13-2015
The PEOPLE of the State of New York, Respondent, v. Shayla FULTON, Defendant–Appellant.
Charles T. Noce, Conflict Defender, Rochester (Kimberly J. Czapranski of Counsel), for Defendant–Appellant. Shayla Fulton, Defendant–Appellant Pro Se. Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Respondent. PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.
Charles T. Noce, Conflict Defender, Rochester (Kimberly J. Czapranski of Counsel), for Defendant–Appellant.
Shayla Fulton, Defendant–Appellant Pro Se.
Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.
Opinion
MEMORANDUM:
12345 Defendant appeals from a judgment convicting her upon her plea of guilty of two counts of robbery in the first degree (Penal Law § 160.15[1], [3] ), assault in the first degree (§ 120.10 [1] ), and grand larceny in the fourth degree (§ 155.30[1] ), arising from the alleged robbery of a restaurant by defendant and her brother. Defendant contends in her pro se supplemental brief that she was the victim of unconstitutional selective prosecution based upon race (see generally People v. Blount, 90 N.Y.2d 998, 999, 665 N.Y.S.2d 626, 688 N.E.2d 500), but that contention was forfeited by her plea of guilty (see People v. Santiago, 55 N.Y.2d 776, 777, 447 N.Y.S.2d 246, 431 N.E.2d 972; People v. Ortiz, 233 A.D.2d 955, 956, 649 N.Y.S.2d 888). Defendant further contends in her pro se supplemental brief that counts one, three and four are multiplicitous on the ground that those counts are based upon the same conduct as the conduct charged in count two. That contention is not preserved for our review inasmuch as she failed to challenge the indictment on that ground (see CPL 470.05 [2]; see People v. Quinn, 103 A.D.3d 1258, 1258, 962 N.Y.S.2d 527, lv. denied 21 N.Y.3d 946, 968 N.Y.S.2d 8, 990 N.E.2d 142). In any event, the contention is without merit. “An indictment ‘is multiplicitous when a single offense is charged in more than one count’ ” (Quinn, 103 A.D.3d at 1259, 962 N.Y.S.2d 527, quoting People v. Alonzo, 16 N.Y.3d 267, 269, 920 N.Y.S.2d 302, 945 N.E.2d 495). Where, as here, however, each count “ requires proof of an additional fact that the other does not,” the indictment is not multiplicitous (People v. Jefferson, 125 A.D.3d 1463, 1464, 3 N.Y.S.3d 547, lv. denied 25 N.Y.3d 990, 10 N.Y.S.3d 533, 32 N.E.3d 970 [internal quotation marks omitted]; cf. Alonzo, 16 N.Y.3d at 269–270, 920 N.Y.S.2d 302, 945 N.E.2d 495; People v. Casiano, 117 A.D.3d 1507, 1509, 984 N.Y.S.2d 781).
67 Defendant failed to preserve for our review the contention in her pro se supplemental brief that both the search warrant and her arrest were based upon unreliable statements of an accomplice and thus were not based on probable cause (see CPL 470.15[3][c] ). In any event, we conclude that the contention is without merit inasmuch as “the statement by the identified citizen informant that was against the informant's ‘own penal interest constituted reliable information for the purposes of supplying probable cause’ ” (People v. Brito, 59 A.D.3d 1000, 1000, 872 N.Y.S.2d 621, lv. denied 12 N.Y.3d 814, 881 N.Y.S.2d 21, 908 N.E.2d 929). Contrary to the further contention of defendant in her pro se supplemental brief, County Court “properly refused to suppress the ... statements that [she] made to police investigators while [she] was in custody. The court's determination that defendant voluntarily waived [her] Miranda rights prior to making those statements was based upon the credibility of the witness[ ] at the suppression hearing and thus is entitled to great deference” (People v. Vaughan, 48 A.D.3d 1069, 1071, 850 N.Y.S.2d 735, lv. denied 10 N.Y.3d 845, 859 N.Y.S.2d 404, 889 N.E.2d 91, cert. denied 555 U.S. 910, 129 S.Ct. 252, 172 L.Ed.2d 190).
89 The contention of defendant in her pro se supplemental brief that her plea was not knowingly, intelligently and voluntarily entered because a favorable sentence for her brother was conditioned upon her plea of guilty is not preserved for our review inasmuch as she failed to move to withdraw the plea or to vacate the judgment of conviction on that ground (see People v. Theall, 109 A.D.3d 1107, 1108, 971 N.Y.S.2d 753, lv. denied 22 N.Y.3d 1159, 984 N.Y.S.2d 643, 7 N.E.3d 1131; cf. People v. Fiumefreddo, 82 N.Y.2d 536, 538–539, 605 N.Y.S.2d 671, 626 N.E.2d 646). In any event, that contention is without merit because the record does not establish that defendant's plea was connected to her brother's sentence (cf. Fiumefreddo, 82 N.Y.2d at 542–543, 605 N.Y.S.2d 671, 626 N.E.2d 646). Furthermore, the record establishes that “nothing in the plea allocution called into question defendant's admitted guilt or the voluntariness of the plea” (People v. Adams, 66 A.D.3d 1355, 1355–1356, 886 N.Y.S.2d 525, lv. denied 13 N.Y.3d 858, 891 N.Y.S.2d 692, 920 N.E.2d 97).
10 Defendant's contention in her pro se supplemental brief that she was denied effective assistance of counsel based upon defense counsel's allegedly erroneous summary of the evidence during the plea colloquy does not survive the plea of guilty because defendant has “failed to demonstrate that ‘the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of the attorney['s] allegedly poor performance’ ” (People v. Grandin, 63 A.D.3d 1604, 1604, 880 N.Y.S.2d 826, lv. denied 13 N.Y.3d 744, 886 N.Y.S.2d 98, 914 N.E.2d 1016).
Finally, contrary to the contention raised in the main and pro se supplemental briefs, the sentence is not unduly harsh and severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.