PEOPLE v. RIZZUTO (2018)

Judgment, Supreme Court, New York County (James M. Burke, J. at pretrial proceedings;  Juan M. Merchan, J. at plea and sentencing), rendered April 19, 2017, convicting defendant of burglary in the second degree, and sentencing him, as a second violent felony offender, to a term of seven years, unanimously affirmed.

Defendant's absence from a brief colloquy does not warrant reversal.  While awaiting the arrival of defendant, who was appearing pro se, the plea court had a conversation with the prosecutor and standby counsel concerning essentially administrative matters.  There were no applications by either side, or determinations of any legal or factual issues.  Accordingly, nothing occurred that required defendant's presence, including in his capacity as his own attorney (see People v. Hameed, 88 N.Y.2d 232, 240–241, 644 N.Y.S.2d 466, 666 N.E.2d 1339 [1996], cert denied 519 U.S. 1065, 117 S.Ct. 704, 136 L.Ed.2d 625 [1997] ).

Defendant's attorney, who became standby counsel after defendant knowingly and voluntary waived his right to counsel, was neither conflicted nor otherwise ineffective at any stage of the proceeding.  No conflict was created when the attorney exercised his professional judgment in declining to adopt his client's pro se motions (see e.g. People v. Mangum, 12 A.D.3d 207, 208, 783 N.Y.S.2d 808 [1st Dept. 2004], lv denied 4 N.Y.3d 765, 792 N.Y.S.2d 9, 825 N.E.2d 141 [2005] ), or when he candidly acknowledged that defendant was in danger of being sentenced as a discretionary persistent felon.  Accordingly, there was no reason for the courts presiding at either the pretrial or plea proceedings to appoint a new attorney for any purpose.

Defendant, who expressly declined to make a motion to withdraw his plea, failed to preserve his challenges to its validity (see People v. Conceicao, 26 N.Y.3d 375, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ), and we decline to review them in the interest of justice.  As an alternative holding, we find that the record establishes the voluntariness of the plea.  Statements by the pretrial and plea courts about the severity of defendant's potential sentence if convicted after trial were not coercive (see e.g. People v. Pagan, 297 A.D.2d 582, 747 N.Y.S.2d 174 [1st Dept. 2002], lv denied 99 N.Y.2d 562, 754 N.Y.S.2d 215, 784 N.E.2d 88 [2002] ).  Likewise, there was nothing coercive about the plea court's insistence that, in order to plead guilty to second-degree burglary, defendant was required to acknowledge that the burglarized location was a dwelling.  In any event, nothing in the record casts doubt on defendant's guilt of second-degree burglary.  To the extent the record reveals the status of the premises, it shows that defendant burglarized a hotel gym, open only to licensees, constituting a dwelling under the burglary statutes (see People v. McCray, 23 N.Y.3d 621, 629–30, 992 N.Y.S.2d 475, 16 N.E.3d 533 [2014] ).

The plea court providently exercised its discretion in declining to order a CPL article 730 examination (see Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 [1966];  People v. Tortorici, 92 N.Y.2d 757, 766, 686 N.Y.S.2d 346, 709 N.E.2d 87 [1999], cert denied 528 U.S. 834, 120 S.Ct. 94, 145 L.Ed.2d 80 [1999];  People v. Morgan, 87 N.Y.2d 878, 879–880, 638 N.Y.S.2d 942, 662 N.E.2d 260 [1995] ).  There was no reason to doubt defendant's mental competency.

Defendant's argument that he was entitled to a hearing on the constitutionality of his predicate felony conviction is also unpreserved, and we decline to review it in the interest of justice.  As an alternative holding, we find that the plea court properly adjudicated defendant a second violent felony offender (see People v. Diggins, 45 A.D.3d 266, 268, 845 N.Y.S.2d 19 [1st Dept. 2007], affd 11 N.Y.3d 518, 872 N.Y.S.2d 408, 900 N.E.2d 959 [2008] ).  Defendant did not allege any cognizable constitutional defect in his predicate conviction.