People v. Goldstein

Rose, J.

Appeal from a judgment of the County Court of Sullivan County (Ledina, J.), rendered April 13, 2007, convicting defendant upon his plea of guilty of the crimes of reckless endangerment in the first degree (two counts) and aggravated unlicensed operation of a motor vehicle in the first degree.

At a time when his driver’s license was suspended and had been previously suspended more than 20 times, defendant was pulled over by police for failing to stop at a stop sign. When the officer asked to see his license, defendant took flight and drove away, allegedly reaching speeds of 70 to 80 miles per hour while the officer gave chase. When defendant sped through a one-lane construction zone, two flag people had to jump out of the way to avoid being struck. Defendant was ultimately apprehended and later charged in a 23-count indictment that included two counts of reckless endangerment in the first degree (counts 1 and 2), one count of aggravated unlicensed operation of a motor vehicle in the first degree (count 3), two misdemeanor counts of reckless driving and 18 separate additional violations of the Vehicle and Traffic Law.

Defendant agreed to the terms of a plea bargain in which he would plead guilty to the three felony counts of the indictment in satisfaction of all 23 charges, waive his right to appeal and, as a second felony offender, receive sentences of 3½ to 7 years on counts 1 and 2, and U/s to 4 years on count 3. Although these were the maximum sentences for each of these three charges, defendant bargained for the benefit of running them concurrently. Before defendant pleaded guilty, County Court advised him that the sentence for each of those counts could be imposed consecutively and, when setting bail, warned him that his failure to appear at sentencing would result in loss of the bargained-for concurrent sentences. Defendant later moved to withdraw his plea, but County Court denied his motion without a hearing. Thereafter, defendant twice failed to appear for sentencing. Ultimately, County Court sentenced him to prison terms as had been agreed, except that the term for count 3 was made consecutive to the other two concurrent terms.

Defendant now appeals, contending that County Court should have granted his motion to withdraw his guilty plea because his plea was not voluntary. Specifically, he argues that his allocution failed to establish the element of depraved indifference as to the reckless endangerment counts, he was coerced by the court’s statement that he could receive consecutive sentences if convicted after a trial and his counsel was ineffective in advising him to accept the proposed plea bargain, including the stipulated sentence. Upon our review of the record, however, we find that the plea as rendered was voluntarily and knowingly given and was accepted by County Court only after it had been established that defendant, with the benefit of counsel, had a full and complete understanding of the plea’s impact and had made a knowing and intelligent waiver of his rights.

As for the element of depraved indifference (see Penal Law § 120.25), defendant specifically admitted that he was operating a large sport utility vehicle at a high rate of speed through a highway construction zone where he knew there were workers and flag people directing traffic. His professed inability to recall at the time of his plea that they had been placed in grave danger does not render his guilty plea invalid. Nor do we read defendant’s answer to County Court’s inquiry to be a denial that he knew that he had actually endangered the workers’ lives. Since as he was asked instead whether he could have killed one of the workers if he had hit the worker and he ultimately answered, “I don’t know,” his equivocation sheds no light on what risks he perceived and yet disregarded when he sped through the construction zone. In any event, his comment does not suggest that his reckless conduct resulted from a preoccupation with his own problems rather than an utter lack of regard for the lives of others (compare People v Feingold, 7 NY3d 288, 295 [2006]). What he did admit—and what his counsel expressly stated on his behalf and in his presence— establishes that he was well aware of the nature of the charges pending against him and, after consultation with counsel, was prepared to admit his guilt. He acknowledged that he had been charged by indictment with fleeing from the police at high speed through the construction zone, failing to comply with the directions of flag people and putting these workers at grave risk of death. When counsel, rather than defendant, stated in response to County Court’s question that defendant did not dispute the allegation that he drove “so close [to the workers] that [he] created a situation that was very dangerous,” defendant did not deny it. Nor did defendant do anything to repudiate counsel’s further statement that “we don’t dispute the allegations and I have had an opportunity to review the allegations, as well as the statement with my client, and we don’t dispute the voracity [sic] of the situation.” From the context which these statements were made, we must conclude by his silence that defendant adopted them and made them his own for purposes of his plea (see People v Hadden, 158 AD2d 856, 857 [1990], lv denied 76 NY2d 847 [1990]; see also People v Brown, 98 NY2d 226, 233 [2002]; People v Cassas, 84 NY2d 718 [1995]).

Further, defendant, at the time of his plea, was a 30-year-old college student who had extensive prior contacts with the criminal justice system. Given this, together with his awareness of the nature of the charges, his admissions, his professed inability to recall and his failure to contradict his counsel’s statements, defendant’s allocution cannot be said to cast doubt upon the culpable mental state of utter disregard for the lives of others that is inferable from these circumstances (see People v Glanda, 18 AD3d 956, 958-959 [2005], lv denied 6 NY3d 754 [2005]; see generally People v Feingold, 7 NY3d at 296). Thus, defendant’s statements given at the time of his guilty plea did not effectively negate an essential element of the crime to which he pleaded (cf. People v Ramirez, 42 AD3d 671, 672 [2007]). Even if defendant’s allocution were deemed factually insufficient, a challenge on that basis is precluded by his waiver of the right to appeal (see People v Jackson, 39 AD3d 1089, 1090 [2007], lv denied 9 NY3d 845 [2007]).

We also are unpersuaded by defendant’s argument that he was misinformed that consecutive sentences could be imposed for his crimes. The indictment alleged that defendant endangered two different flag people. While the record does not disclose the length of the construction zone, neither did defendant dispute the prosecutor’s assertion in response to his motion to vacate his plea that the flag people were at opposite ends of the zone. Rather, defendant contended only that his driving through the zone constituted a single act. Inasmuch as the People advanced facts supporting a view that defendant’s driving was at a different time and place as to each victim, they satisfied their obligation to show that he endangered the flag people by separate, successive and distinct acts for which consecutive sentences could be imposed (see People v Ramirez, 89 NY2d 444, 451 [1996]; People v De Maio, 304 AD2d 988, 988 [2003]). Also unavailing is defendant’s suggestion that he was misinformed by County Court’s incorrect statement of the range of years in prison that he could be sentenced if convicted after trial, for the court made that statement after, rather than before, he entered his guilty plea. Thus, County Court’s and counsel’s references to potential consecutive sentences were not misleading and defendant’s plea was not thereby coerced.

Next, there is no merit in defendant’s contention that County Court erred in imposing a consecutive sentence for his aggravated unlicensed operation conviction. That charge and the reckless endangerment charges were based upon “separate and distinct acts involving different kinds of conduct, as alleged in the separate counts of the indictment, even though they evolved from the same operation of a motor vehicle” (People v Richburg, 287 AD2d 790, 792 [2001], lv denied 97 NY2d 687 [2001]; see People v Brown, 80 NY2d 361, 364 [1992]). Specifically, defendant was driving his vehicle on a public highway without a driver’s license before he was stopped by police, and his subsequent flight through the construction zone was a separate and distinct act.

Nor did County Court err in rejecting defendant’s conclusory excuse for his violation of the Parker warnings without first conducting a full evidentiary hearing (see People v Outley, 80 NY2d 702, 714 [1993]). The court noted that defendant had not appeared on two prior occasions and afforded him an adequate opportunity to explain his absences. Defendant alleged only that treatment for psychological distress, apparently due to anxiety resulting from his impending sentencing, had prevented his appearance at one of the scheduled sentencing dates, yet he offered no specifics or documentation to support his claim.

Finally, defendant’s challenge to the severity of his sentence is foreclosed by his waiver of the right to appeal and the record does not support his claim that his counsel was ineffective in advising him to accept a plea agreement that satisfied additional charges and avoided consecutive sentences.

Peters and Kavanagh, JJ., concur.