Opinion
2014-05-8
The PEOPLE of the State of New York, Respondent, v. Bradley J. VILLNAVE, Appellant.
Richard V. Manning, Parishville, for appellant. Mary E. Rain, District Attorney, Canton (Alexander Lesyk of counsel), for respondent.
Richard V. Manning, Parishville, for appellant. Mary E. Rain, District Attorney, Canton (Alexander Lesyk of counsel), for respondent.
Before: PETERS, P.J., STEIN, ROSE and EGAN JR., JJ.
ROSE, J.
Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered July 19, 2011, convicting defendant upon his plea of guilty of the crime of attempted burglary in the third degree.
Defendant pleaded guilty to a reduced charge of attempted burglary in the third degree in full satisfaction of an amended indictment charging him with multiple counts arising out of the theft of certain snowmobiles. County Court agreed to imposea prison sentence of 2 to 4 years, direct restitution and recommend that defendant be enrolled in a shock incarceration program. Defendant was cautioned, however, that if he were to violate the conditions of his release by, among other things, testing positive for any illegal substances, the court would not be bound by its promise to recommend shock incarceration. When defendant later tested positive for cocaine use, County Court sentenced him, as a second felony offender, to a prison term of 2 to 4 years, without recommending the shock program, and directed him to pay restitution in the amount of $2,790. Defendant now appeals.
Although defendant agreed to waive his right to appeal as part of the plea agreement, the People correctly concede that such waiver is unenforceable here “given that he was not advised that it was a right separate and distinct from the other rights that he was forfeiting by pleading guilty” ( People v. Bressard, 112 A.D.3d 988, 988, 976 N.Y.S.2d 302 [2013],lv. denied22 N.Y.3d 1137, 983 N.Y.S.2d 495, 6 N.E.3d 614 [2014] ).
We cannot agree with defendant's claim that the People's failure to timely file the amended indictment rendered it jurisdictionally defective. Although CPL 210.20(6) provides a 30–day period after entry of an order reducing a count or counts of an indictment during which the People are authorized to exercise certain options, this time period acts as a stay intended to prevent an opportunistic defendant from “exercis[ing] the statutory right to plead guilty to the reduced indictment before the People had a fair chance to respond” ( People v. Jackson, 87 N.Y.2d 782, 787, 642 N.Y.S.2d 602, 665 N.E.2d 172 [1996] ). The People's filing of the reduced indictment 33 days after County Court's order does not render the indictment jurisdictionally defective inasmuch as the failure to take any action within 30 days results only in the requirement that the People file the reduced indictment ( see People v. Jackson, 87 N.Y.2d at 789, 642 N.Y.S.2d 602, 665 N.E.2d 172).
Defendant next argues that he did not agree to the conditions of his release. This argument is unpreserved for our review, however, given defendant's failure to make an appropriate postallocution motion ( see People v. Lewis, 98 A.D.3d 1186, 1186, 951 N.Y.S.2d 594 [2012] ). In any event, County Court retained “discretion in overseeing and approving [the] plea bargain[ ], including the imposition of conditions” ( People v. Avery, 85 N.Y.2d 503, 507, 626 N.Y.S.2d 726, 650 N.E.2d 384 [1995] ). County Court fully advised defendant that it would not be bound by its sentencing promise if he tested positive for drugs prior to sentencing, defendant failed to object to that condition and he subsequently tested positive for cocaine. Given the circumstances, we find no abuse of discretion in County Court's refusal to recommend defendant's placement in a shock incarceration program ( see People v. Smith, 100 A.D.3d 1102, 1103, 953 N.Y.S.2d 377 [2012];People v. Augustine, 265 A.D.2d 671, 672, 697 N.Y.S.2d 698 [1999] ).
Nor do we find that County Court abused its discretion in refusing to recuse itself from presiding over defendant's sentencing based on comments the court had made at a codefendant's earlier sentencing. The comments were derived from knowledge obtained within the criminal action against defendant—namely, his criminal history and the fact that he had involved his codefendant in a criminal scheme—and they do not suggest any impermissible bias against defendant ( see People v. Moreno, 70 N.Y.2d 403, 405–406, 521 N.Y.S.2d 663, 516 N.E.2d 200 [1987];Burke v. Carrion, 101 A.D.3d 920, 921, 957 N.Y.S.2d 243 [2012];People v. Shultis, 61 A.D.3d 1116, 1117, 876 N.Y.S.2d 740 [2009],lv. denied 12 N.Y.3d 929, 884 N.Y.S.2d 710, 912 N.E.2d 1091 [2009] ). Finally, because defendant failed to request a restitution hearing or challenge the amount set by County Court, his argument that the amount was unsupported by the evidence is unpreserved ( see People v. Smith, 112 A.D.3d 1232, 1233, 976 N.Y.S.2d 747 [2013];People v. Thomas, 71 A.D.3d 1231, 1232, 896 N.Y.S.2d 264 [2010],lv. denied14 N.Y.3d 893, 903 N.Y.S.2d 781, 929 N.E.2d 1016 [2010] ). Were we to consider this argument, we would find that it lacks merit.
ORDERED that the judgment is affirmed.
PETERS, P.J., STEIN and EGAN JR., JJ., concur.