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

1080
KA 12-01920
PRESENT: SMITH, J.P., CENTRA, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAVID F. ROBINSON, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (MARK C. DAVISON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered November 10, 2010. The judgment convicted
defendant, upon his plea of guilty, of robbery in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice and on the law by reducing the amount of restitution to
$2,000, and as modified the judgment is affirmed.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of robbery in the first degree
(Penal Law § 160.15 [4]) and, in appeal No. 2, he appeals from a
judgment convicting him, also upon his plea of guilty, of criminal
possession of a weapon in the second degree (§ 265.03 [3]). In both
appeals, defendant contends that he was represented by counsel on a
matter upon which he was questioned by the police, and that County
Court therefore erred in refusing to suppress his statements to the
police. Although defendant’s contention survives his guilty pleas
(see CPL 710.70 [2]), we conclude that it lacks merit. There was no
evidence at the Huntley hearing that defendant was represented by
counsel on any pending charge when he was questioned, and he thus
failed to demonstrate that his right to counsel had indelibly attached
(cf. People v Huntsman, 96 AD3d 1390, 1391-1392).

     Contrary to defendant’s further contention in both appeals, the
court properly refused to conduct a Mapp hearing in connection with
his request to suppress all evidence arising from the stop of the
vehicle that he was operating. In seeking a hearing, defendant
alleged that the police lacked reasonable suspicion to stop the
vehicle because he had properly stopped at a stop sign before the
police pursued him on a high-speed chase throughout the City of
                                 -2-                          1080
                                                         KA 12-01920

Rochester. The discovery materials and accusatory instruments that
had been provided to defendant indicated that a police sergeant
observed defendant operating a vehicle that had been reported stolen
the day before, and that as the sergeant began to pursue the vehicle
he observed it go through a stop sign without coming to a complete
stop. The discovery materials further indicated that the sergeant and
other officers observed defendant commit a lengthy series of crimes
and additional traffic infractions during the resulting pursuit,
culminating in defendant crashing into a stopped Rochester Police
Department patrol vehicle. “The allegations in defendant’s moving
papers, when considered in the context of the detailed information
provided to defendant, were insufficient to create a factual dispute
requiring such a hearing” (People v Springs, 58 AD3d 541, 542, lv
denied 12 NY3d 788; see People v Caldwell, 78 AD3d 1562, 1563, lv
denied 16 NY3d 796; see generally People v Long, 8 NY3d 1014, 1015).

     Defendant further contends in appeal No. 1 that the court erred
in denying his day-of-trial request for an adjournment to retain a new
attorney. Even assuming, arguendo, that defendant did not forfeit
that contention by pleading guilty (see generally People v Hansen, 95
NY2d 227, 230-232), we reject defendant’s contention. It is well
settled that “the constitutional right to [a defense] by counsel of
one’s own choosing does not bestow upon a criminal defendant the
absolute right to demand that his trial be delayed while he selects
another attorney to represent him at trial . . . Whether a continuance
should be granted is largely within the discretion of the Trial Judge”
(People v Arroyave, 49 NY2d 264, 271). Here, we perceive no abuse of
that discretion.

     Defendant further contends that the court erred in imposing
restitution in excess of the amount promised during the plea. Even
assuming, arguendo, that the People are correct that “[d]efendant
failed to preserve for our review his challenge to the amount of
restitution imposed” (People v White, 70 AD3d 1316, 1318, lv denied 14
NY3d 845), we nevertheless exercise our power to review defendant’s
contention as a matter of discretion in the interest of justice (see
CPL 470.15 [3] [c]). We conclude, as the People correctly concede,
that the amount of restitution imposed was in excess of the amount set
forth in the plea agreement, and we thus conclude that the court erred
in imposing that amount. The parties agree, and the record
establishes, that the court promised at the time of the plea to cap
the amount of restitution at $2,000. We therefore modify the judgment
in appeal No. 1 by reducing the amount of restitution accordingly (see
People v Butti, 250 AD2d 859, 860, lv denied 92 NY2d 923).




Entered:   October 9, 2015                      Frances E. Cafarell
                                                Clerk of the Court
