Opinion
2012-12-6
The PEOPLE of the State of New York, Respondent, v. Raymond WHALEN, Appellant.
John A. Cirando, Syracuse, for appellant. Eric T. Schneiderman, Attorney General, New York City (Hannah Stith Long of counsel), for respondent.
John A. Cirando, Syracuse, for appellant. Eric T. Schneiderman, Attorney General, New York City (Hannah Stith Long of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, KAVANAGH, STEIN and EGAN JR., JJ.
STEIN, J.
Appeal from a judgment of the County Court of St. Lawrence County (Rogers, J.), rendered January 13, 2011, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.
As the result of a wiretap investigation by the Attorney General's Organized Crime Task Force into drug activity in St. Lawrence County, defendant and two codefendants were named in a sealed indictment which, among other things, charged defendant with conspiracy in the fourth degree, criminal possession of a controlled substance in the first degree and criminal possession of a controlled substance in the third degree. Following the denial of defendant's motion to suppress over 10 ounces of cocaine that had been seized from his vehicle, defendant pleaded guilty to criminal possession of a controlled substance in the third degree in satisfaction of the indictment. Pursuant to the plea bargain, defendant was sentenced as a second felony offender to a prison term of five years, followed by three years of postrelease supervision. This appeal followed.
Although defendant agreed to waive his right to appeal as part of the plea, the People concede, and we agree, that such waiver is unenforceable due to the absence of proof in the record that defendant was adequately apprised of the ramifications thereof ( see People v. Bradshaw, 18 N.Y.3d 257, 264–266, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011];People v. Burton, 93 A.D.3d 949, 949, 939 N.Y.S.2d 717 [2012],lv. denied19 N.Y.3d 958, 950 N.Y.S.2d 110, 973 N.E.2d 208 [2012] ).
We affirm. Initially, we are unpersuaded by defendant's contention that County Court erred in denying his motion to suppress the cocaine seized from his disabled vehicle parked in a retail store parking lot. State Trooper Daniel Snyder and his canine partner Juna were dispatched to the scene after electronic surveillance of defendant's phone revealed that his truck had broken down and there was a possibility he had driven there for purposes of a narcotics sale. Snyder testified that he approached defendant and, as he asked him basic questions about his vehicle and what he was doing in the area, observed that defendant was “extremely nervous” and would not calm down. Snyder further testified that defendant told him that he was planning to meet someone at a fast-food restaurant in a locationthat Snyder knew—from his own first-hand knowledge of the area—was false. According to Snyder, he then asked for and received defendant's consent to search his truck, at which point Snyder utilized Juna to conduct an exterior sniff of the vehicle. After the dog alerted to the presence of narcotics, Snyder asked defendant why Juna would do so and defendant responded that he had a small amount of marihuana in the vehicle. Based upon this admission, Snyder frisked defendant and then searched the vehicle, ultimately finding, among other things, over 10 ounces of cocaine. Although defendant testified during the hearing on his suppression motion that he never gave consent to search his vehicle, County Court credited Snyder's testimony and denied the motion.
The police are permitted to approach a parked vehicle and request information concerning identity and destination when there is an articulable “objective, credible reason” for doing so ( People v. Ocasio, 85 N.Y.2d 982, 984, 629 N.Y.S.2d 161, 652 N.E.2d 907 [1995] ), such as, for example, “mak[ing] sure [that] everything [is] okay” ( People v. Story, 81 A.D.3d 1168, 1168, 917 N.Y.S.2d 403 [2011] ). Here, defendant does not dispute that Snyder was justified in approaching him to make some basic queries based upon his disabled vehicle ( see People v. Wallgren, 94 A.D.3d 1339, 1340, 943 N.Y.S.2d 639 [2012] ). Thereafter, defendant's highly nervous demeanor and false answer regarding his destination were sufficient to afford Snyder a “founded suspicion that criminal activity [was] afoot” ( People v. Devone, 15 N.Y.3d 106, 110, 905 N.Y.S.2d 101, 931 N.E.2d 70 [2010];see People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ). Given that founded suspicion, Snyder's subsequent request for consent was proper ( see People v. Oldacre, 53 A.D.3d 675, 676–677, 861 N.Y.S.2d 444 [2008] ), as was his action in directing a canine sniff of the vehicle's exterior ( see People v. Devone, 15 N.Y.3d at 113–114, 905 N.Y.S.2d 101, 931 N.E.2d 70). Although defendant maintains that his version of events was more credible than that of Snyder, “much weight must be accorded [to] the determination of the suppression court with its peculiar advantages of having seen and heard the witnesses” ( People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977];see People v. Horge, 80 A.D.3d 1074, 1074, 915 N.Y.S.2d 757 [2011] ).
We find no abuse of discretion in County Court's refusal to assign new defense counsel in response to a letter from defendant making such request. A removal request should only “be granted upon a showing of good cause, such as a conflict of interest or other irreconcilable differences” ( People v. Sturdevant, 74 A.D.3d 1491, 1494, 904 N.Y.S.2d 777 [2010],lv. denied15 N.Y.3d 810, 908 N.Y.S.2d 170, 934 N.E.2d 904 [2010] ). “[G]ood cause does not exist when defendants are guilty of delaying tactics or where, on the eve of trial, disagreements over trial strategy generate discord” ( People v. Linares, 2 N.Y.3d 507, 511, 780 N.Y.S.2d 529, 813 N.E.2d 609 [2004];see People v. Sturdevant, 74 A.D.3d at 1494, 904 N.Y.S.2d 777).
Here, the record reflects that, following a motion brought by defense counsel seeking permission to withdraw based on defendant's purported lack of trust in counsel's abilities, County Court conducted a thorough inquiry on the record, at which point defendant expressly denied that he was requesting that another attorney be assigned. Less than three weeks later and just a few weeks before the scheduled trial date, defendant wrote to the court, indicating that he was now requesting new counsel, as well as a delay of the impending trial. Defendant's request appeared to be based primarily on the fact that his current counsel had moved to withdraw and on various differences in strategy between them. Under these circumstances and given that the concerns set forth in defendant's letter could have been raised when the parties previously appeared before the court on defense counsel's motion, we find no error in the court's refusal to revisit the issue.
Defendant's claim that his guilty plea was not knowing, intelligent or voluntary is not preserved for appellate review, inasmuch as the record fails to indicate that he moved to withdraw the plea or vacate the judgment of conviction ( see People v. DeJesus, 96 A.D.3d 1295, 1295, 947 N.Y.S.2d 216 [2012];People v. Leszczynski, 96 A.D.3d 1162, 1162, 948 N.Y.S.2d 125 [2012],lv. denied19 N.Y.3d 998, 951 N.Y.S.2d 474, 975 N.E.2d 920 [2012] ). Moreover, the narrow exception to the preservation requirement does not apply as defendant did not “make any statements during his plea allocution that tended to negate a material element of the crime or otherwise cast doubt upon his guilt” ( People v. Richardson, 83 A.D.3d 1290, 1291, 920 N.Y.S.2d 752 [2011],lv. denied17 N.Y.3d 821, 929 N.Y.S.2d 809, 954 N.E.2d 100 [2011];see People v. Carpenter, 93 A.D.3d 950, 952, 939 N.Y.S.2d 658 [2012],lv. denied19 N.Y.3d 863, 947 N.Y.S.2d 411, 970 N.E.2d 434 [2012] ).
Defendant further contends that his negotiated prison sentence was harsh and excessive and should be reduced in the interest of justice. Based upon our review of the record, we disagree. Defendant did not receive the maximum available prison term for the offense to which he pleaded guilty ( seePenal Law § 70.70[3][b][i] ) and, in view of the allegations contained in the indictment, defendant's criminal history and the lack of any mitigating circumstances, “we find no extraordinary circumstances nor any abuse of discretion warranting a reduction of the sentence[ ] in the interest of justice” ( People v. Garren, 84 A.D.3d 1638, 1639, 923 N.Y.S.2d 366 [2011],lv. denied17 N.Y.3d 816, 929 N.Y.S.2d 805, 954 N.E.2d 96 [2011];see People v. Elder, 89 A.D.3d 1278, 1279, 932 N.Y.S.2d 734 [2011],lv. denied18 N.Y.3d 923, 942 N.Y.S.2d 462, 965 N.E.2d 964 [2012] ).
With regard to defendant's claim that his jail time credit was incorrectly calculated, we need only note that “the proper vehicle for [such] claim ... is a CPLR article 78 proceeding, not a direct appeal” ( People v. Golgoski, 43 A.D.3d 551, 553, 840 N.Y.S.2d 254 [2007] ).
Finally, while defendant correctly argues that he qualifies as a second felony drug offender—a subcategory of second felony offenders ( seePenal Law §§ 70.06[1][a]; 70.70[3][b][i] )—inasmuch as defendant's uniform sentence and commitment form accurately reflects the terms of his plea and the sentencing minutes ( compare People v. Vasavada, 93 A.D.3d 893, 894, 938 N.Y.S.2d 924 [2012],lv. denied19 N.Y.3d 978, 950 N.Y.S.2d 360, 973 N.E.2d 770 [2012] ), we discern no reason to amend such form to refer to him as a second felony drug offender, rather than a second felony offender.
Notably, defendant has failed to articulate any present legal or practical distinction between the two.
ORDERED that the judgment is affirmed.