PEOPLE v. BOVA (2024)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Clinton County (William A. Favreau, J.), rendered December 19, 2019, convicting defendant upon his plea of guilty of the crimes of murder in the second degree, attempted murder in the second degree, criminal possession of a weapon in the second degree, criminal use of a firearm in the first degree and menacing in the second degree.

Defendant pleaded guilty to an indictment charging him with murder in the second degree, attempted murder in the second degree, criminal possession of a weapon in the second degree, criminal use of a firearm in the first degree and menacing in the second degree.¹  The charges stem from defendant firing four shots from a 9 millimeter Highpoint rifle at the victims – who were mother and daughter – as they drove past him, striking the younger victim, with whom defendant was involved in a tumultuous relationship, in the head killing her.  County Court, which had made no sentencing commitment, sentenced defendant to the maximum prison term of 25 years to life upon his conviction of murder in the second degree, imposed lesser concurrent sentences on the remaining convictions, imposed $21,000 in fines and ordered restitution for funeral expenses.  Defendant appeals.

Defendant contends that the sentence imposed – particularly the sentence for the conviction of murder in the second degree – was harsh and severe given his nonviolent criminal history, genuine remorse and assertion that his conduct was out of character, together with his untreated substance abuse.  Given the senseless, brutal act of violence and devastating consequences for the victims’ family, and the fact that consecutive sentences on the murder and attempted murder conviction could have been imposed, we are unpersuaded that the sentence is harsh or severe, and decline defendant's request that we reduce the sentence in the interest of justice (see CPL 470.15[6][b]).

Defendant, relying on CPL 300.30(4), contends that his conviction of criminal possession of a weapon in the second degree – and the fine associated therewith – must be reversed because it is an inclusory concurrent count of criminal use of a firearm in the first degree.  Such contention is misplaced, however, as CPL article 300 “deals only with trials, and has no application to convictions obtained on plea of guilty” (People v. Walton, 41 N.Y.2d 880, 880–881, 393 N.Y.S.2d 979, 362 N.E.2d 610 [1977];  accord People v. Galdamez–Galdamez, 199 A.D.3d 1014, 1015, 154 N.Y.S.3d 824 [2d Dept. 2021], lv denied 37 N.Y.3d 1160, 160 N.Y.S.3d 694, 181 N.E.3d 1122 [2022];  People v. Redden, 182 A.D.3d 926, 927, 123 N.Y.S.3d 246 [3d Dept. 2020], lv denied 35 N.Y.3d 1115, 133 N.Y.S.3d 512, 158 N.E.3d 529 [2020];  see People v. Carrion, 198 A.D.3d 428, 428, 152 N.Y.S.3d 304 [1st Dept. 2021]).  Having elected to plead guilty, defendant is foreclosed from raising such claim (see People v. Walton, 41 N.Y.2d at 880–881, 393 N.Y.S.2d 979, 362 N.E.2d 610;  People v. Cobb, 145 A.D.3d 738, 738–739, 42 N.Y.S.3d 342 [2d Dept. 2016], lv denied 29 N.Y.3d 947, 54 N.Y.S.3d 378, 76 N.E.3d 1081 [2017];  People v. Bliss, 245 A.D.2d 459, 459, 666 N.Y.S.2d 461 [2d Dept. 1997]).

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   The indictment also charged defendant with reckless endangerment in the first degree, which was satisfied by his guilty plea.

Lynch, J.

Egan Jr., J.P., Aarons, Pritzker and McShan, JJ., concur.