Opinion
96 KA 16–01976
04-24-2020
The PEOPLE of the State of New York, Respondent, v. Joseph HARRIS, Defendant–Appellant.
PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT–APPELLANT. GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT–APPELLANT.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted criminal possession of a weapon in the third degree ( Penal Law §§ 110.00, 265.02[1] ) and criminal possession of stolen property in the fifth degree (§ 165.40). Defendant was charged in an eight-count indictment with a series of charges, and he originally pleaded guilty to attempted criminal possession of a weapon in the third degree and attempted promoting prison contraband in the first degree ( §§ 110.00, 205.25[2] ) as lesser included offenses of the crimes charged in the third and eighth counts of the indictment, respectively, in full satisfaction of the indictment. On a prior appeal, however, we vacated that part of the plea of guilty to attempted promoting prison contraband because defendant expressly stated during his plea colloquy that he did not knowingly possess any contraband, and County Court failed to inquire further to ensure that defendant's guilty plea was knowing and voluntary ( People v. Harris , 134 A.D.3d 1587, 1587–1588, 23 N.Y.S.3d 516 [4th Dept. 2015], lv . denied 27 N.Y.3d 998, 38 N.Y.S.3d 108, 59 N.E.3d 1220 [2016] ). We remitted the matter to County Court for further proceedings on count eight of the indictment, and we noted that, because we vacated part of the plea, "the People have been deprived of the benefit of their bargain" ( id. at 1588, 23 N.Y.S.3d 516 ). Thus, we directed that, "upon remittal, the court should entertain a motion by the People, should the People be so disposed, to vacate the plea ... in its entirety" ( id. [internal quotation marks omitted] ). After the People so moved upon remittal, the court granted the motion, vacated the judgment of conviction, and reinstated the indictment in its entirety. Defendant later pleaded guilty to the crimes stated above, again in full satisfaction of the indictment. We affirm.
Defendant failed to move to withdraw his plea or to vacate the judgment of conviction, and thus he failed to preserve his contention that his plea of guilty on remittal was not knowingly, voluntarily, and intelligently entered (see People v. Boyden , 112 A.D.3d 1372, 1372–1373, 977 N.Y.S.2d 538 [4th Dept. 2013], lv . denied 23 N.Y.3d 960, 988 N.Y.S.2d 568, 11 N.E.3d 718 [2014] ). We conclude that this case does not fall within the narrow exception to the preservation requirement because the plea colloquy did not "clearly cast[ ] significant doubt upon the defendant's guilt or otherwise call[ ] into question the voluntariness of the plea" ( People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). In any event, the evidence in the record demonstrates that defendant knowingly, voluntarily, and intelligently entered the guilty plea (see People v. Seeber, 4 N.Y.3d 780, 781–782, 793 N.Y.S.2d 826, 826 N.E.2d 797 [2005] ; People v. Weakfall , 108 A.D.3d 1115, 1116, 969 N.Y.S.2d 655 [4th Dept. 2013], lv. denied 21 N.Y.3d 1078, 974 N.Y.S.2d 327, 997 N.E.2d 152 [2013] ).
Contrary to defendant's contention, his failure to admit the elements of the crimes to which he pleaded guilty does not invalidate his guilty plea. It is well settled that "an allocution based on a negotiated plea need not elicit from a defendant specific admissions as to each element of the charged crime" ( People v. Goldstein , 12 N.Y.3d 295, 301, 879 N.Y.S.2d 814, 907 N.E.2d 692 [2009] ). Indeed, the Court of Appeals has "refused to disturb pleas by canny defendants even [where, as here,] there has been absolutely no elicitation of the underlying facts of the crime ... It is enough that the allocution shows that the defendant understood the charges and made an intelligent decision to enter a plea" ( id. ). Here, "the allocution was adequate to meet these purposes" ( id. ).
We reject defendant's contention that, on remittal, the court erred in granting the People's motion seeking, inter alia, to vacate his prior plea in its entirety. The People were deprived of the benefit of the original plea agreement when this Court vacated defendant's plea of guilty with respect to one of the crimes to which defendant pleaded guilty, and thus they were entitled to withdraw their consent to that plea agreement (see generally CPL 220.10[3], [4] ). Accordingly, the court properly exercised its discretion on remittal by granting the People's motion, vacating defendant's prior judgment of conviction, and reinstating the indictment in its entirety (see People v. Farrar , 52 N.Y.2d 302, 307–308, 437 N.Y.S.2d 961, 419 N.E.2d 864 [1981] ; People v. Speed , 13 A.D.3d 1083, 1084, 786 N.Y.S.2d 874 [4th Dept. 2004], lv . denied 5 N.Y.3d 795, 801 N.Y.S.2d 815, 835 N.E.2d 675 [2005] ; People v. Irwin , 166 A.D.2d 924, 925, 561 N.Y.S.2d 676 [4th Dept 1990] ).
Although we agree with defendant that his double jeopardy claim, asserted in a preplea motion, was not forfeited by his subsequent guilty plea (see People v. Hansen , 95 N.Y.2d 227, 231 n 2, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ), we reject his contention that the indictment's reinstatement violated his right to be protected from double jeopardy under the federal and state constitutions. It is well established that a defendant who succeeds, as defendant did here, in having a conviction reversed on appeal may be retried for the same offense without contravening double jeopardy principles (see Matter of Suarez v. Byrne , 10 N.Y.3d 523, 534, 860 N.Y.S.2d 439, 890 N.E.2d 201 [2008], rearg. denied 11 N.Y.3d 753, 864 N.Y.S.2d 801, 894 N.E.2d 1191 [2008] ). Moreover, double jeopardy does not apply under the circumstances here because defendant's prior judgment of conviction was vacated on remittal, thereby rendering the conviction a nullity (see Matter of DeCanzio v. Kennedy , 67 A.D.2d 111, 116, 415 N.Y.S.2d 513 [4th Dept. 1979], lv . denied 47 N.Y.2d 709, 419 N.Y.S.2d 1025, 393 N.E.2d 491 [1979] ; People v. Yaghoubi , 10 Misc.3d 406, 411, 802 N.Y.S.2d 913 [Nassau Dist. Ct. 2005] ).
We reject defendant's contention that the court erred in denying his motion, upon remittal, asking that the court recuse itself. "Absent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal" ( People v. Moreno , 70 N.Y.2d 403, 405, 521 N.Y.S.2d 663, 516 N.E.2d 200 [1987] ; see People v. Chess , 162 A.D.3d 1577, 1578, 79 N.Y.S.3d 433 [4th Dept. 2018] ). Here, defendant did not allege a legal disqualification under Judiciary Law § 14 ; rather, his contention that the court was biased arose from the court's participation in the prior plea, which is not an extrajudicial source of bias that serves as a basis for recusal (see People v. Terborg , 156 A.D.3d 1320, 1321, 67 N.Y.S.3d 730 [4th Dept. 2017], lv . denied 31 N.Y.3d 1018, 78 N.Y.S.3d 288, 102 N.E.3d 1069 [2018] ).
Defendant's further contention that the court failed to make a sufficient inquiry into his request for substitution of counsel "is encompassed by the plea ... except to the extent that the contention implicates the voluntariness of the plea" ( People v. Morris , 94 A.D.3d 1450, 1451, 942 N.Y.S.2d 725 [4th Dept. 2012], lv . denied 19 N.Y.3d 976, 950 N.Y.S.2d 358, 973 N.E.2d 768 [2012] [internal quotation marks omitted]; see People v. Sallard , 175 A.D.3d 1839, 1839–1840, 109 N.Y.S.3d 547 [4th Dept. 2019] ). Defendant nonetheless abandoned that request when he "decid[ed] ... to plead guilty while still being represented by the same attorney" ( People v. Kates , 162 A.D.3d 1627, 1629, 78 N.Y.S.3d 600 [4th Dept. 2018], lv . denied 32 N.Y.3d 1065, 89 N.Y.S.3d 120, 113 N.E.3d 954 [2018], reconsideration denied 32 N.Y.3d 1173, 97 N.Y.S.3d 582, 121 N.E.3d 209 [2019] [internal quotation marks omitted] ). In any event, that contention lacks merit. Defendant failed to demonstrate the requisite "good cause for substitution ... inasmuch as his objections to his assigned counsel were vague and unsubstantiated" ( People v. Farmer , 132 A.D.3d 1238, 1239, 16 N.Y.S.3d 877 [4th Dept. 2015], lv . denied 27 N.Y.3d 1068, 38 N.Y.S.3d 839, 60 N.E.3d 1205 [2016] ).
Finally, defendant's contention concerning his request for a change of venue was forfeited by his plea of guilty (see People v. Williams , 14 N.Y.2d 568, 570, 248 N.Y.S.2d 659, 198 N.E.2d 45 [1964] ; People v. Baker , 175 A.D.3d 1113, 1114, 105 N.Y.S.3d 314 [4th Dept. 2019], lv . denied 34 N.Y.3d 978, 113 N.Y.S.3d 664, 137 N.E.3d 34 [2019], lv . granted 34 N.Y.3d 1126, 118 N.Y.S.3d 504, 141 N.E.3d 460 [2020] ; People v. De Alvarez , 59 A.D.3d 732, 732–733, 873 N.Y.S.2d 724 [2d Dept. 2009], lv . denied 12 N.Y.3d 852, 881 N.Y.S.2d 664, 909 N.E.2d 587 [2009] ).