Opinion
2014-91 D CR
12-31-2015
The People of the State of New York, Respondent, v. Lionel Warfield, Appellant.
PRESENT: :
Appeal from a judgment of the Justice Court of the Town of Poughkeepsie, Dutchess County (Paul L. Banner, J.), rendered December 18, 2013. The judgment convicted defendant, after a nonjury trial, of failing to obey a traffic-control device.
ORDERED that the judgment of conviction is affirmed.
On October 17, 2013, the People charged defendant, in a simplified traffic information, with failing to obey a traffic-control device (Vehicle and Traffic Law § 1110 [a]) on Davis Avenue in the Town of Poughkeepsie, New York. Defendant pleaded not guilty by mail (see Vehicle and Traffic Law § 1806), and, in a letter dated October 25, 2013, the Justice Court informed defendant that his not guilty plea had been accepted, set an appearance date, and advised defendant of his right to the assistance of counsel at all proceedings. Defendant appeared pro se on the set date, and, following an unsuccessful attempt to negotiate a plea bargain, the matter proceeded to a nonjury trial. As defendant acknowledges on the appeal, he admitted his guilt at the trial, offering in mitigation the claim that his failure to obey the traffic-control device was inadvertent. Following the trial, defendant was convicted of the traffic infraction.
After being informed that the audio recording of the trial proceedings had been lost or destroyed, defendant perfected his appeal pursuant to CPL 460.10 (3), asserting in his affidavit of errors that the Justice Court never acquired personal jurisdiction over him because there was never a proper arraignment at which he was informed of his right to counsel and provided with a copy of the accusatory instrument (see CPL 1.20 [9]; 170.10 [2], [3]; People v Repanti, 40 Misc 3d 131[A], 2013 NY Slip Op 51132[U], *1 [App Term, 9th & 10th Jud Dists 2013]); that the police officer who had issued the simplified traffic information and who had appeared to prosecute the case improperly declined to offer defendant the opportunity to plead guilty to a lesser offense in exchange for a higher fine; that he was not informed of his right to appeal; and, in effect, that the loss of the trial transcript deprived him of his right to an effective appeal.
Although defendant insists he was actually arraigned on the accusatory instrument, his use of the plea by mail option "dispense[d] with an arraignment or personal appearance of [the] defendant" (People v Cruz, 86 AD3d 782, 783 [2011]), and there is no dispute that defendant received a copy of the accusatory instrument at the scene of the infraction and that he was informed of his right to counsel in the letter of October 25, 2013. In any event, by appearing in court, attempting to plea bargain with the prosecuting police officer, and proceeding to trial "fully aware of the charge asserted against him," he effectively submitted to the court's jurisdiction ( see e.g. People v Hallenbeck, 81 AD3d 1077, 1079 [2011]; People v Repanti, 40 Misc 3d 131[A], 2013 NY Slip Op 51132[U], *1; People v Carter, 33 Misc 3d 14, 16 [App Term, 9th & 10th Jud Dists 2011]).
Defendant's only reference in the affidavit of errors to the claim that he was unfairly denied the opportunity to plead guilty to a lesser offense is "differential prosecution." In its return, the Justice Court, understandably, made no reference to the claim now raised on the appeal, rendering it unpreserved (see People v Saint Angel, 39 Misc 3d 149[A], 2013 NY Slip Op 50946[U], *2 [App Term, 9th & 10th Jud Dists 2013]). In any event, there is no constitutional right to a plea bargain (People v Adams, 20 NY3d 608, 613 [2013], citing Lafler v Cooper, 566 US , , 132 S Ct 1376, 1395 [2012]). The selective exercise of the plea bargaining authority, by "implicat[ing] a suspect class or fundamental right" (People v Murphy, 29 Misc 3d 79, 81 [App Term, 9th & 10th Jud Dists 2010]), may give rise to "an appearance of impropriety," that is, to an appearance that the prosecutor "is [not] exercising pretrial prosecutorial discretion in an evenhanded manner, based on the merits of the case or other legitimate prosecutorial concerns" (Adams, 20 NY3d at 613). However, here, defendant acknowledges that the prosecuting police officer informed him that the plea bargaining policy was to decline to reduce moving violations if based on the failure to obey traffic-control devices and that all other persons similarly so charged also were not permitted to plead guilty to a lesser offense. Thus, the refusal implicates only the general wisdom of the exercise of prosecutorial discretion in the particular matter being prosecuted and does not implicate a suspect class or fundamental right, nor even the appearance of impropriety (see People v Humphrey, 30 AD3d 766, 767 [2006] ["Plea bargaining policies differ from county to county depending upon individual judicial philosophy, as well as differing caseloads and staffing, and certainly do not implicate constitutional considerations. A defendant is entitled to a fair trial, not a reduced charge or lesser sentence because someone else was accorded such a choice"]).
With respect to defendant's right to appeal, in the Justice Court's return, it is stated that defendant "was advised of his right to appeal," an assertion of fact by which we are bound (People v Prior, 4 NY2d 70, 73 [1958]; e.g. People v Gold, 42 Misc 3d 139[A], 2014 NY Slip Op 50173[U], *2 [App Term, 9th & 10th Jud Dists 2014]). In any event, defendant asserts that he was informed of the procedures by a court officer. Moreover, he timely filed a notice of appeal, and he perfected the appeal by a proper method (see CPL 460.10 [3]). Thus, there was no prejudice to his right to appeal. Further, defendant has not established that the loss of the recording of the trial proceedings deprived him of his right to an effective appeal. An affidavit of errors permits an appellant to "set[] forth alleged errors or defects in the proceedings which are the subjects of the appeal" (CPL 460.10 [3] [a]). The court, in a return, must address those errors or defects by a recitation of the "facts or occurrences in or adduced at the proceedings . . . which constitute the factual foundation for the contentions alleged in the affidavit of errors" (CPL 460.10 [3] [d]), which permits the court to admit or dispute the facts underlying defendant's assertions of error or defect. We note that defendant acknowledges that, at the trial, he admitted his guilt, offering in his defense only the purported mitigating factor that he failed to obey the traffic-control device due to inadvertence, and he does not assert any prejudice to his opportunity to litigate an "error[] or defect[]" by the loss of the recording.
Accordingly, the judgment of conviction is affirmed.
Marano, P.J., Iannacci and Tolbert, JJ., concur.
Decision Date: December 31, 2015