        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

881
KA 11-01779
PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SHAYLA FULTON, DEFENDANT-APPELLANT.


CHARLES T. NOCE, CONFLICT DEFENDER, ROCHESTER (KIMBERLY J. CZAPRANSKI
OF COUNSEL), FOR DEFENDANT-APPELLANT.

SHAYLA FULTON, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O’BRIEN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John Lewis
DeMarco, J.), rendered September 2, 2010. The judgment convicted
defendant, upon her plea of guilty, of robbery in the first degree
(two counts), assault in the first degree and grand larceny in the
fourth degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting her
upon her plea of guilty of two counts of robbery in the first degree
(Penal Law § 160.15 [1], [3]), assault in the first degree (§ 120.10
[1]), and grand larceny in the fourth degree (§ 155.30 [1]), arising
from the alleged robbery of a restaurant by defendant and her brother.
Defendant contends in her pro se supplemental brief that she was the
victim of unconstitutional selective prosecution based upon race (see
generally People v Blount, 90 NY2d 998, 999), but that contention was
forfeited by her plea of guilty (see People v Santiago, 55 NY2d 776,
777; People v Ortiz, 233 AD2d 955, 956). Defendant further contends
in her pro se supplemental brief that counts one, three and four are
multiplicitous on the ground that those counts are based upon the same
conduct as the conduct charged in count two. That contention is not
preserved for our review inasmuch as she failed to challenge the
indictment on that ground (see CPL 470.05 [2]; see People v Quinn, 103
AD3d 1258, 1258, lv denied 21 NY3d 946). In any event, the contention
is without merit. “An indictment ‘is multiplicitous when a single
offense is charged in more than one count’ ” (Quinn, 103 AD3d at 1259,
quoting People v Alonzo, 16 NY3d 267, 269). Where, as here, however,
each count “requires proof of an additional fact that the other does
not,” the indictment is not multiplicitous (People v Jefferson, 125
                                 -2-                           881
                                                         KA 11-01779

AD3d 1463, 1464, lv denied 25 NY3d 990 [internal quotation marks
omitted]; cf. Alonzo, 16 NY3d at 269-270; People v Casiano, 117 AD3d
1507, 1509).

     Defendant failed to preserve for our review the contention in her
pro se supplemental brief that both the search warrant and her arrest
were based upon unreliable statements of an accomplice and thus were
not based on probable cause (see CPL 470.15 [3] [c]). In any event,
we conclude that the contention is without merit inasmuch as “the
statement by the identified citizen informant that was against the
informant’s ‘own penal interest constituted reliable information for
the purposes of supplying probable cause’ ” (People v Brito, 59 AD3d
1000, 1000, lv denied 12 NY3d 814). Contrary to the further
contention of defendant in her pro se supplemental brief, County Court
“properly refused to suppress the . . . statements that [she] made to
police investigators while [she] was in custody. The court’s
determination that defendant voluntarily waived [her] Miranda rights
prior to making those statements was based upon the credibility of the
witness[ ] at the suppression hearing and thus is entitled to great
deference” (People v Vaughan, 48 AD3d 1069, 1071, lv denied 10 NY3d
845, cert denied 555 US 910).

     The contention of defendant in her pro se supplemental brief that
her plea was not knowingly, intelligently and voluntarily entered
because a favorable sentence for her brother was conditioned upon her
plea of guilty is not preserved for our review inasmuch as she failed
to move to withdraw the plea or to vacate the judgment of conviction
on that ground (see People v Theall, 109 AD3d 1107, 1108, lv denied 22
NY3d 1159; cf. People v Fiumefreddo, 82 NY2d 536, 538-539). In any
event, that contention is without merit because the record does not
establish that defendant’s plea was connected to her brother’s
sentence (cf. Fiumefreddo, 82 NY2d at 542-543). Furthermore, the
record establishes that “nothing in the plea allocution called into
question defendant’s admitted guilt or the voluntariness of the plea”
(People v Adams, 66 AD3d 1355, 1355-1356, lv denied 13 NY3d 858).

     Defendant’s contention in her pro se supplemental brief that she
was denied effective assistance of counsel based upon defense
counsel’s allegedly erroneous summary of the evidence during the plea
colloquy does not survive the plea of guilty because defendant has
“failed to demonstrate that ‘the plea bargaining process was infected
by [the] allegedly ineffective assistance or that defendant entered
the plea because of the attorney[’s] allegedly poor performance’ ”
(People v Grandin, 63 AD3d 1604, 1604, lv denied 13 NY3d 744).

     Finally, contrary to the contention raised in the main and pro se
supplemental briefs, the sentence is not unduly harsh and severe.




Entered:   November 13, 2015                    Frances E. Cafarell
                                                Clerk of the Court
