People v. Patterson

204 N.Y.S.3d 624

The PEOPLE of the State of New York, Respondent,

v.Robert PATTERSON, Appellant.

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

Calendar Date: January 10, 2024

Decided and Entered: February 8, 2024

John A. Cirando, Syracuse, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (Philip A. Alvaro of counsel), for respondent.

Before: Clark, J.P., Lynch, Reynolds Fitzgerald, McShan and Powers, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

Appeal from a judgment of the County Court of Chemung County (Richard W. Rich Jr., J.), rendered September 21, 2020, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.

In February 2020, defendant was indicted and charged with promoting prison contraband in the first degree. Although defendant was arraigned in-person, subsequent appearances before County Court were conducted virtually as a result of the restrictions imposed upon the Unified Court System due to the COVID–19 pandemic. After the matter twice was adjourned to afford defendant additional time to consider the People’s plea offer, defendant agreed to plead guilty to the reduced charge of attempted promoting prison contraband in the first degree with the understanding that he would be sentenced as a second felony offender to a prison term of 1½ to 3 years – to be served consecutively to the prison term defendant then was serving. Defendant pleaded guilty in conformity with the plea agreement, and County Court thereafter imposed the agreed-upon term of imprisonment. This appeal ensued.

[1] Defendant initially contends that, absent his express consent, the virtual plea and sentencing proceedings violated, among other provisions, CPL 182.30(1). This argument, however, is unpreserved for our review (see People v. Witherspoon, 210 A.D.3d 1145, 1147, 178 N.Y.S.3d 236 [3d Dept. 2022], lv denied 39 N.Y.3d 1076, 183 N.Y.S.3d 777, 204 N.E.3d 413 [2023]), "and the asserted error does not qualify as a mode of proceedings error obviating the need for preservation" (People v. Lomack, 217 A.D.3d 1281, 1283, 192 N.Y.S.3d 703 [3d Dept. 2023], lv denied 40 N.Y.3d 951, 195 N.Y.S.3d 678, 217 N.E.3d 699 [2023]; accord People v. Bonilla, 219 A.D.3d 1094, 1095, 196 N.Y.S.3d 579 [3d Dept. 2023], lv denied, 40 N.Y.3d 1038, 200 N.Y.S.3d 776, 223 N.E.3d 1252 [2023]; see People v. Witherspoon,. 210 A.D.3d at 1147, 178 N.Y.S.3d 236).

[2–4] Defendant’s challenge to the voluntariness of his plea, as well as his related claim of ineffective assistance of counsel (to the extent that it impacts upon the voluntariness of his plea), are unpreserved for our review absent evidence of an appropriate postallocution motion (see People v. Wilkerson, 221 A.D.3d 1187, 1188, 197 N.Y.S.3d 765 [3d Dept. 2023]; People v. Faublas, 216 A.D.3d 1358, 1359, 189 N.Y.S.3d 828 [3d Dept. 2023], lv denied 40 N.Y.3d 934, 194 N.Y.S.3d 756, 215 N.E.3d 1197 [2023]; People v. West, 210 A.D.3d 1194, 1195, 178 N.Y.S.3d 266 [3d Dept. 2022], lv denied 39 N.Y.3d 1080, 184 N.Y.S.3d 290, 204 N.E.3d 1072 [2023]). Although defendant initially denied – during the course of the plea colloquy – that he possessed dangerous contraband and claimed that he was only defending himself from an attack by another incarcerated individual, in response to County Court’s further questioning, defendant admitted each of the elements of the crime to which he pleaded guilty and acknowledged that he "possessed a weapon" (see People v. Stafford, 195 A.D.3d 1466, 1467, 145 N.Y.S.3d 506 [4th Dept. 2021], lv denied 37 N.Y.3d 1029, 153 N.Y.S.3d 409, 175 N.E.3d 434 [2021]; People v. Young, 158 A.D.3d 955, 956, 68 N.Y.S.3d 773 [3d Dept. 2018], lv denied 31 N.Y.3d 1090, 79 N.Y.S.3d 111, 103 N.E.3d 1258 [2018]). Under these circumstances, the narrow exception to the preservation requirement is inapplicable (see People v. McQuilla, 210 A.D.3d 1191, 1191–1192, 178 N.Y.S.3d 264 [3d Dept. 2022]; People v. Fauntleroy, 206 A.D.3d 1347, 1347–1348, 168 N.Y.S.3d 916 [3d Dept. 2022]), and defendant’s subsequent and similar "statements to the Probation Department did not impose a duty on County Court to conduct a sua sponte inquiry concerning a potential … defense" (People v. Fauntleroy, 206 A.D.3d at 1348, 168 N.Y.S.3d 916; see People v. Lomack, 217 A.D.3d at 1282–1283, 192 N.Y.S.3d 703; People v. Rodriguez, 206 A.D.3d 1383, 1384, 170 N.Y.S.3d 359 [3d Dept. 2022]; People v....