Opinion
KA 02-01039.
December 31, 2003.
Appeal from a judgment of Erie County Court (Pietruszka, J.), entered March 18, 2002, convicting defendant upon his plea of guilty of unauthorized use of a vehicle in the second degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (DON I. DALLY OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: GREEN, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of unauthorized use of a vehicle in the second degree (Penal Law § 165.06). We agree with defendant that his waiver of the right to appeal is unenforceable ( see People v. Thaxton, 309 A.D.2d 1255; People v. Fehr, 303 A.D.2d 1039, 1039-1040, lv denied 100 N.Y.2d 538; People v. Brown, 296 A.D.2d 860, lv denied 98 N.Y.2d 767). We conclude, however, that the integrity of the grand jury proceeding was not impaired. In seeking dismissal of the indictment, defendant failed to meet his burden of demonstrating "the existence of defects impairing the integrity of the grand jury proceeding and giving rise to a possibility of prejudice" ( People v. Santmyer, 255 A.D.2d 871, 871-872, lv denied 93 N.Y.2d 902; see People v. Robertson, 302 A.D.2d 956, 957-958, lv denied 100 N.Y.2d 542; People v. Davis, 294 A.D.2d 936, 937, lv denied 98 N.Y.2d 696; People v. Wood, 291 A.D.2d 824, lv denied 98 N.Y.2d 657). Although it was error to keep defendant in the presence of a deputy sheriff and handcuffed while he was testifying without a judicial determination and articulation on the record of a reasonable need for that procedure ( see People v. Felder [appeal No. 2], 201 A.D.2d 884, 885, lv denied 83 N.Y.2d 871; see also People v. Neubauer, 296 A.D.2d 557, lv denied 98 N.Y.2d 731), here the prosecutor's cautionary instructions to the grand jurors dispelled any possible prejudice to defendant ( see Neubauer, 296 A.D.2d 557; see also Felder, 201 A.D.2d at 885, citing People v. Greiner, 156 A.D.2d 813, 817, lv denied 75 N.Y.2d 919).
We further conclude that County Court did not abuse its discretion in denying the motion of defendant to withdraw his guilty plea ( see People v. Williams, 305 A.D.2d 1022, lv denied 100 N.Y.2d 589; People v. May, 305 A.D.2d 1095, lv denied 100 N.Y.2d 622; People v. Rankin, 303 A.D.2d 990, 990-991, lv denied 100 N.Y.2d 565). Nor did the court err in denying the motion of defendant to suppress his statement. The conflicting testimony at the Huntley hearing presented a credibility issue that the court was entitled to resolve against defendant ( see People v. Daniels, 309 A.D.2d 1225; People v. Price, 309 A.D.2d 1259; People v. Coleman, 306 A.D.2d 941; see generally People v. Prochilo, 41 N.Y.2d 759, 761). The testimony of the investigating officers supports the court's determination that defendant's statements were preceded by Miranda warnings and voluntarily made by defendant, without any promises, threats, or coercion on the part of police ( see Daniels, 309 A.D.2d at 1225; Coleman, 306 A.D.2d at 941).