People v. Brown

213 A.D.3d 1035

182 N.Y.S.3d 812

The PEOPLE of the State of New York, Respondent,

v.Quintin BROWN, Also Known as Demarco, Appellant.

112360

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 17, 2023

Decided and Entered: February 9, 2023

Tina K. Sodhi, Alternate Public Defender, Albany (Steven M. Sharp of counsel), for appellant, and appellant pro se.

P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), for respondent.

Before: Garry, P.J., Clark, Aarons, Reynolds Fitzgerald and McShan, JJ.

MEMORANDUM AND ORDER

Aarons, J. Appeal from a judgment of the Supreme Court (Thomas A. Breslin, J.), rendered February 27, 2020 in Albany County, convicting defendant upon his plea of guilty of the crime of burglary in the first degree.

Defendant was charged in an indictment with several crimes, including attempted murder in the first degree, attempted murder in the second degree, burglary in the first degree and criminal possession of a weapon in the second degree. The charges stemmed from defendant entering an occupied residence with a loaded firearm and discharging the weapon several times. In satisfaction of the indictment, defendant pleaded guilty to burglary in the first degree, with the understanding that he would be sentenced to a prison term of no less than 15 years and no greater than 19 years and purportedly waived the right to appeal. Prior to sentencing, defendant and defense counsel requested that counsel be relieved, and defendant moved to withdraw the plea. The Conflict Defender was assigned to represent defendant and, at sentencing, defendant withdrew the motion to withdraw the plea and affirmed that he wanted to go ahead with sentencing under the plea. Supreme Court thereafter sentenced defendant to 18½ years in prison, to be followed by five years of postrelease supervision. Defendant appeals.

Initially, the People concede, and our review of the record confirms, that defendant did not validly waive the right to appeal (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Therefore, the challenge to the severity of the sentence is properly before us (see People v. McKoy, 175 A.D.3d 1616, 1617, 108 N.Y.S.3d 520 [3d Dept. 2019], lv denied 34 N.Y.3d 1018, 114 N.Y.S.3d 767, 138 N.E.3d 496 [2019] ). Nevertheless, in view of the violent nature of the crime and that the sentence was within the range agreed to as part of defendant's negotiated plea agreement, we discern no basis upon which to disturb the sentence as unduly harsh or severe and we decline defendant's invitation to reduce it in the interest of justice (see CPL 470.15[6][b] ; People v. Blackmon, 207 A.D.3d 962, 962–963, 170 N.Y.S.3d 522 [3d Dept. 2022] ). Defendant also argues that, by being asked for and providing a cell phone number prior to the administration of Miranda warnings, his response and all other statements made by him following the Miranda warnings should have been suppressed as part of an improperly elicited continuous interrogation. Inasmuch, however, as defendant failed to raise these specific arguments at the suppression hearing, the issue is unpreserved for our review (see People v. Weaver, 167 A.D.3d 1238, 1240, 90 N.Y.S.3d 359 [3d Dept. 2018], lv denied 33 N.Y.3d 955, 100 N.Y.S.3d 187, 123 N.E.3d 846 [2019] ; People v. Rumrill, 40 A.D.3d 1273, 1274, 836 N.Y.S.2d 333 [3d Dept. 2007], lv denied 9 N.Y.3d 926, 844 N.Y.S.2d 181, 875 N.E.2d 900 [2007] ).

Turning to the issues raised in defendant's supplemental pro se brief, his challenge to the voluntariness of his plea is unpreserved for our review "given that he withdrew his motion to withdraw his guilty plea at sentencing and failed to move to vacate the judgment of conviction" ( People v. Smith, 155 A.D.3d 1244, 1245, 65 N.Y.S.3d 580 [3d Dept. 2017] [internal quotation marks and citation omitted]; see People v. Cantey, 161 A.D.3d 1449, 1450, 77 N.Y.S.3d 761 [3d Dept. 2018], lv denied 32 N.Y.3d 935, 84 N.Y.S.3d 862, 109 N.E.3d 1162 [2018] ). Further, defendant did not make any statements during the plea colloquy or at sentencing that negated an element of the crime or the voluntariness of his plea so as to trigger the narrow exception to the preservation requirement (see People v. Clark, 209 A.D.3d 1063, 1064, 175 N.Y.S.3d 751 [3d Dept. 2022] ; ...