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

252
KA 11-02500
PRESENT: SMITH, J.P., CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RICHARD PITCHER, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR
DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered September 26, 2011. The judgment convicted
defendant, upon his plea of guilty, of burglary in the first degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of burglary in the first degree (Penal Law §
140.30 [2]). Initially, we agree with defendant that his waiver of
the right to appeal was not valid (see People v Trinidad-Ayala, 114
AD3d 1229, 1229, lv denied 23 NY3d 1044). Defendant failed to
preserve for our review, however, his challenge to the factual
sufficiency of the plea colloquy (see People v Lopez, 71 NY2d 662,
665; People v Spears, 106 AD3d 1534, 1535, affd 24 NY3d 1057).
Contrary to defendant’s contention, this case does not fall within the
rare exception to the preservation requirement set forth in Lopez
because nothing in the plea allocution calls into question the
voluntariness of the plea or casts “significant doubt” upon his guilt
(id. at 666; see People v Lewandowski, 82 AD3d 1602, 1602). In any
event, even assuming, arguendo, that defendant’s initial hesitation to
implicate his codefendant in the crime called into question the
voluntariness of defendant’s plea, we conclude on the record before us
that County Court fulfilled its “duty to inquire further to ensure
that defendant’s guilty plea [was] knowing and voluntary” (Lopez, 71
NY2d at 666; see People v Mitchell, 48 AD3d 1081, 1082, lv denied 10
NY3d 867).

     Defendant failed to move to withdraw his plea, and thus he failed
to preserve for our review his further contention that his plea was
coerced by the court (see People v Carlisle, 50 AD3d 1451, 1451, lv
denied 10 NY3d 957). In any event, that contention is belied by the
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                                                         KA 11-02500

record because, during the plea proceeding, defendant denied that he
had been threatened or otherwise pressured into pleading guilty (see
People v Worthy, 46 AD3d 1382, 1382, lv denied 10 NY3d 773; People v
Gradia, 28 AD3d 1206, 1206-1207, lv denied 7 NY3d 756). Furthermore,
the court did not coerce defendant into pleading guilty merely by
informing him of the range of sentences that he faced if he proceeded
to trial and was convicted (see People v Boyde, 71 AD3d 1442, 1443,
lv denied 15 NY3d 747; People v Lando, 61 AD3d 1389, 1389, lv denied
13 NY3d 746), or by commenting on the strength of the People’s
evidence against him (see generally People v Hamilton, 45 AD3d 1396,
1396, lv denied 10 NY3d 765; People v Campbell, 236 AD2d 877, 878).
In addition, “the fact that defendant was required ‘to accept or
reject the plea offer within a short time period does not amount to
coercion’ ” (People v Irvine, 42 AD3d 949, 949, lv denied 9 NY3d 962;
see People v Mason, 56 AD3d 1201, 1202, lv denied 11 NY3d 927).

     We reject the further contention of defendant that the court
erred in determining that he was not entitled to receive the benefit
of a favorable sentencing provision of the plea agreement, which
required him to cooperate with the People in the prosecution of his
codefendant. At the time of the plea, the court indicated that it
would sentence defendant to a lesser sentence if he cooperated in the
prosecution of his codefendant, including providing truthful testimony
at his codefendant’s trial, but that it would impose the maximum
sentence if defendant failed to cooperate. Defendant later informed
the probation officer who prepared the presentence report that he
would not testify against the codefendant. Based on the information
that defendant provided to the prosecutor in a meeting prior to the
codefendant’s trial, which varied from the testimony provided by all
the other witnesses, and upon defendant’s statements to the probation
officer, the prosecutor determined that defendant would not provide
truthful testimony and declined to call him as a witness at the
codefendant’s trial. Furthermore, when called as a defense witness at
that trial, defendant invoked his rights under the Fifth Amendment of
the United States Constitution. We agree with the People that
defendant’s efforts to cooperate were “of questionable value and . . .
clearly less than what the People bargained for” (People v Paige, 266
AD2d 587, 588, lv denied 94 NY2d 827; see generally People v Curdgel,
83 NY2d 862, 864). Defendant’s contention that the cooperation
contemplated by the plea agreement did not require him to testify
against his codefendant is belied by the record (cf. People v
Gabbidon, 96 AD3d 1235, 1236). Consequently, “the record supports the
court’s determination that defendant’s level of cooperation in the
trial of [his codefendant] was insufficient” (People v Crawford, 55
AD3d 1335, 1336, lv denied 11 NY3d 896).

     Defendant further contends that he was denied effective
assistance of counsel because defense counsel did not file certain
motions and was late in arriving in court at times. Defendant’s
contention “survives his guilty plea only to the extent that [he]
contends that his plea was infected by the alleged ineffective
assistance.” In that context, we conclude that defendant received
meaningful representation inasmuch as he received “an advantageous
plea and nothing in the record casts doubt on the apparent
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                                                         KA 11-02500

effectiveness of counsel” (People v Nieves, 299 AD2d 888, 889, lv
denied 99 NY2d 631 [internal quotation marks omitted]; see People v
Arney, 120 AD3d 949, 950; People v Campbell, 106 AD3d 1507, 1508, lv
denied 21 NY3d 1002).

     As the People correctly concede, the uniform sentence and
commitment sheet incorrectly recites that defendant was convicted of
robbery in the first degree. The sentence and commitment must
therefore be amended to correct the clerical error and to reflect that
defendant was convicted of burglary in the first degree (see generally
People v Saxton, 32 AD3d 1286, 1286-1287).

     The sentence is not unduly harsh or severe. We have considered
defendant’s remaining contentions and conclude that they are without
merit.




Entered:   March 27, 2015                       Frances E. Cafarell
                                                Clerk of the Court
