

People v McCollough (2016 NY Slip Op 00113)





People v McCollough


2016 NY Slip Op 00113


Decided on January 12, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on January 12, 2016

Renwick, J.P., Andrias, Saxe, Moskowitz, JJ.


16617 1595/12

[*1] The People of the State of New York, Respondent,
vWallace McCollough, Defendant-Appellant.


Robert S. Dean, Center for Appellate Litigation, New York (Molly Ryan of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), for respondent.

Judgment, Supreme Court, New York County (Charles H. Solomon, J.), rendered June 11, 2013, convicting defendant, upon his plea of guilty, of burglary in the third degree, and sentencing him, as a second felony offender, to a term of 3½ to 7 years as a parole supervision sentence, unanimously affirmed.
Defendant did not preserve his claim that his plea was involuntary (see People v Conceicao,  NY3d , NY Slip Op 08615, *2 [2015]), and we decline to review it in the interest of justice. Although defendant moved to withdraw his plea, it is clear that the relief he was seeking was the court's adherence, notwithstanding defendant's rearrest, to the original promise of a parole supervision sentence (see CPL 410.91), and that the court granted that relief to defendant's satisfaction. As an alternative holding, we find that defendant's plea was made knowingly, voluntarily, and intelligently, and that the court sufficiently explained the promised sentence.
Defendant's claim that the integrity of the grand jury proceedings was impaired because grand jurors allegedly saw him in handcuffs is likewise unpreserved, and we decline to review it in the interest of justice. Defendant's motion to dismiss the indictment did not assert this circumstance as a ground for dismissal, although the motion referred to the alleged handcuffing incident in a different context. As an alternative holding, we also reject it on the merits. Even at a trial, where the issue is guilt or innocence, a jury's brief and inadvertent viewing of a defendant in handcuffs does not warrant reversal (People v Harper, 47 NY2d 857, 858 [1979]).
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 12, 2016
CLERK


