The People, Respondent,v.Phillip Couser, Appellant. (Appeal No. 2.)

Brief

N.Y.October 14, 2016

Brief Completed: October 21, 2015 To Be Argued By: Geoffrey Kaeuper Time Requested: 15 Minutes STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, -vs- PHILLIP COUSER, Respondent, Defendant-Appellant. BRIEF FOR RESPONDENT APL-2015-00178 APL-2015-00179 SANDRA DOORLEY District Attorney of Monroe County Attorney for Respondent By: Geoffrey Kaeuper Assistant District Attorney Suite 832 Ebenezer Watts Building Rochester, New York 14614 Phone: (585) 753-4674 Fax: (585) 753-4576 TABLE OF CONTENTS QUESTIONS PRESENTED 1 PRELIMINARY STATEMENT 2 STATEMENT OF FACTS 3 POINT I The attempted robbery in the first degree sentences could run consecutively to the robbery in the first degree sentence. POINT II POINT III CONCLUSION Defendant was not deprived of effective assistance of counsel. Defendant is not entitled to vacatur of his Alford plea on the ground that he negated an element. 11 15 19 21 TABLE OF AUTHORITIES CASES Matter of Silmon v Travis, 95 NY2d 4 70 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I 9 North Carolina v Alford, 400 US 25 ( 1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 19, 20 People v Cahill, I NY3d 14 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 People v Frazier, 16 NY3d 36 (201 0) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I 7 People v Laureano, 87 NY2d 640 ( 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12 People v Lovell, 25 NY 3d I 088 (20 I 5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 People v McKnight, 16 NY3d 43 (2010) .... .. .... . . ... .. .. ....... . . .. .. .. .. .. ... . 12 People v Parb, 95 NY2d 811 (2000) . . . . .. . . .. . .. . . .. . . . . . . . . . . . . .. . . . .. . . .. . . .. . 16 People v Ramirez, 89 NY2d 444 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 People v Rodriguez, 25 NY3d 238 (2015) . . . . .. .. . ... . .. . .. . ... . . . ......... . ... 15, 16 People v Rosas, 8 NY3d 493 (2007) . . . . . . . . . . . . . . . . . . . .. . . .. . .. . .. . . . . . .. . . . . . . .. 12 People v Yang Yun Lee, 92 NY2d 987 (1998) ... .. ...... . . . .... . .... . .. .. .. . ... . . . . 12 STATUTES Penal Law § 15.00 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Penal Law § 15.05 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Penal Law § 70.25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Penal Law § 70.45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Penal Law§ 110.00 . .. . ... .. . . .. . . . ...... . . .. .... .... ... .... .... ... .. . .. ... 2, 12 Penal Law§ 120.10 ... .... .... ..... . ...... .. .. . .. . . .... .. ..... . . . .. . . ... ... . . I5 Penal Law § I 25.27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 11 Penal Law§ 160.15 .................................................... . 2, 15, 16 Penal Law § 265.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Penal Law§ 265.03 ............................................................ 2 111 QUESTIONS PRESENTED 1. Question: Was it permissible to run the sentences for attempted robbery in the first degree consecutively to the sentence for robbery in the first degree of a separate victim? Answer of the Trial Court: Answer of the Yes. Appellate Division: Yes. 2. Question: Was defendant deprived of effective assistance of counsel in connection with the Alford plea to attempted murder in the first degree? Answer of the Trial Court: Not addressed. Answer of the Appellate Division: No. 3. Question: Is defendant entitled to vacatur of the conviction for attempted murder in the first degree on the ground that the plea was not knowing, intelligent, and voluntary? Answer of the Trial Court: Not addressed. Answer of the Appellate Division: No. 1 PRELIMINARY STATEMENT In APL 2015-00178, defendant Phillip Couser was convicted, upon a jury verdict, entered on January 27, 2010, of robbery in the first degree (Penal Law § 160.15 [4]), criminal possession of a weapon (two counts)(§ 265.03 [1] [b], [3]), attempted robbery in the first degree (three counts)(§§ 110.00, 160.15 [4]), and criminal possession of a weapon in the third degree(§ 265.02 [1]) in Supreme Court, Monroe County (Hon. Dennis M. Kehoe, A.J.) (Appendix [hereinafter "A"] 13). For those convictions, defendant was sentenced to an aggregate detenninate term of incarceration of 48 years with 5 years of post-release supervision (A 13- 14 ). The Appellate Division reduced that aggregate sentence to 33 years (A 8). In APL 2015-00179, defendant was convicted, upon his plea pursuant to North Carolina v Alford (400 US 25 [1970]), entered on June 22, 2010, of attempted murder in the first degree(§§ 110.00, 125.27 [1] [g]) in Supreme Court, Monroe County (Hon. Francis A. Affronti, J.). For that conviction, defendant was sentenced on June 22, 20 10, to an indetenninate term of incarceration of 15 years to life, to run concurrently with the sentences already imposed (A 15-16). There has been no stay of either sentence and defendant is currently in custody (http://nysdoccslookup.doccs.ny.gov [DIN: 10-B-2094]). 2 STATEMENT OF FACTS A Monroe County Grand Jury indicted defendant on charges relating to two criminal transactions. In the first, the indictment alleged that, on August 16, 2008, defendant possessed a loaded firearm, attempted to rob three people, robbed one person, and attempted to kill one of the attempted robbery victims by shooting him (A 17-20). In the second transaction, the indictment alleged that, on November 25, 2008, defendant possessed a loaded firearm (A 20). Only the first transaction is in issue on appeal. Defendant pleaded not guilty and, after pre-trial motions that are not in issue on appeal, proceeded to trial. .JURY TRIAL On August 16, 2008, shortly after 8:00P.M., Mark Lewis, Jennifer Salonen, Brandon Fischer, Julie Belknap, and Ernest Fraiser were at the gorge in the area of Driving Park Avenue and Lake Avenue (A 86, 112, 130, 149). As they were returning to their car, they encountered a group of two men and two women that included defendant (A 88-89, 114, 151). Defendant pulled out a gun and told everyone to get on the ground or he would kill them (A 89, 115-116, 132, 151- 152). While the victims were complying, defendant cocked the gun, placed it against the back of Lewis's head, and fired a single shot (A 90-91, 117, 119). The 3 shock of the barrel touching his head, however, made Lewis flinch at just the moment defendant pulled the trigger, causing the bullet to strike him non-fatally in the back of the head (A 90). At some point, the other man with defendant took Belknap's purse, but the witnesses did not agree on the timing. According to Salonen, after the shooting, defendant said "get the purse" and the other man took Belknap's purse (A 118). According to Belknap, however, defendant kicked the purse to his companion, who took it before defendant fired the gun (A 133, 146). Fischer, like Belknap, testified that the other man took the purse before defendant fired (A 153). After defendant left, Salonen called 911 (A 121). Fischer wrapped a shirt around Lewis's head (A 155), and they took him to the hospital, where the wound to the back of his head was stapled (A 95). Police recovered a handgun in the bushes near the scene of the shooting (A 167). In a separate investigation, police recovered a loaded handgun from defendant's residence. The details of that investigation are not pertinent to this appeal except to the extent that it led to defendant's custody and transport to the Public Safety Building, where he was placed in an interview room. On November 25, 2008, Investigators Matthew Hill and Mark Patterson spoke with defendant at the Public Safety Building (A 179-180). Investigator Hill 4 read defendant Miranda warnings and defendant agreed to speak with him (A 181- 184 ). Defendant initially denied possessing the pistol found at his residence (A 185). After speaking with another officer, however, defendant admitted to the investigators that "the gun was given to his [g]irlfriend, Shanika Lockett, over a month ago, to give to him in order to protect his house and that he had put the gun in their attic under a board" (A 187). Investigator Hill then wrote that down, he read the entire statement to defendant, and defendant signed it (A 189-190, 192). About forty minutes after taking the statement about the gun, Investigator Hill returned to the interview room and spoke with defendant about the shooting at the gorge (A 193). Defendant "pretty immediately" admitted that he had shot someone at the gorge (A 195). Investigator Hill wrote down defendant's version of events, he read the statement to defendant, and defendant signed it (A 196). The statement read: "A few months ago, during the summer, I was with three people, a guy and two girls, near the gorge at Driving Park A venue and Lake Avenue. As we were leaving, we passed a group of people. I had taken some Ecstasy pills earlier in the day and was not feeling right. It was the first time I have ever done that. I had a 357 handgun with me. I had bought it from a girl who had stolen it. The trigger of the gun was very sensitive. For some reason, I decided to rob the people that were passing. I pulled the gun and pointed it at everyone. We were all on a walking trail. 5 The people that I was going to rob got on the ground. When I pointed the gun at those people it went off by accident. I did not mean to shoot anyone. I saw that one person was shot. I stayed there for a minute to make sure that he moved and looked o.k. Then I tossed the gun away and ran off with the three other people that I was with. I got a ride home to Centennial St. I really did not mean to shoot anyone and I am glad that kid is o.k." (A 28-29, 199-200). For the Defense Defendant testified on his own behalf. He admitted that he had the gun that was found at Centennial Street "for protection" (A 285). As to the incident on August 16, defendant testified that he had consumed vodka and ecstasy and that the ecstasy made him "feel like something was inside of [him]'' (A 291). He was armed with a .357 magnum (A 289). He was with three other people in the park, but claimed he did not know them (A 293). When he passed a group of people, although he did not pull out his gun, "they seen the gun and everybody like started getting down" (A 295). He admitted that the victims did everything he ordered them to do, but also claimed that he "never said one word to them" (A 297, 312). When he then pulled the gun out, which was already cocked, it accidentally discharged without him pointing it at anyone (A 296-297, 312). Defendant did not see Lewis hit by the bullet (A 297-298). Nevertheless, defendant, who had begun to run, suddenly stopped and waited until he saw that Lewis moved (A 297). He 6 then resumed running and threw the gun away (A 297). verdict & Sentencine The jury could not reach a verdict as to the charge of attempted murder in the first degree and, with defendant's consent, the court declared a mistrial as to that count and accepted a partial verdict (A 442-443). The jury found defendant guilty of the remaining charges (A 447-448). Thereafter, the court sentenced defendant to: a determinate term of 18 years with 5 years of post-release supervision ("PRS") for robbery in the first degree; determinate terms of 15 years with 5 years of PRS for each criminal possession of a weapon in the second degree; determinate terms of 15, 10, and 5 years, with 5 years of PRS each, for the attempted robberies in the first degree; and a determinate term of 6 years with 2 years of PRS for criminal possession of a weapon in the third degree (A 465-469). The court directed that the sentences for the robbery and criminal possession of a weapon in the second degree run concurrently with each other but consecutively to the remaining sentences (A 468). The court further directed that the sentence for each attempted robbery was to run consecutively to all other sentences, and that the sentence for criminal possession of a weapon in the third degree was to run concurrently to all other sentences (A 468-469, 470). The aggregate sentence, therefore, was 48 years with 5 years of post-release supervision (see Penal Law§ 70.45 [5] [c]). 7 ALFORD PLEA Before retrial of the remaining count in the indictment, charging attempted murder in the first degree, defense counsel asked the court whether it would allow an Alford plea with concurrent sentencing (A 482). Counsel explained that defendant "would not be able to give a colloquy indicating an intentional act on his part" (A 482). In light of the 48 year sentence already imposed, the court was amenable to imposing the minimum sentence on the attempted murder, to run concurrently with the other sentences (A 482-483). But the court initially refused to allow an Alford plea (A 483). After further discussion, however, the court agreed to allow an Alford plea for "the one and only time" (491). Counsel explained that "[b]ased upon conversations after the trial the best information that we have is that the vote in the jury was eleven to one for conviction" (A 488). He further explained that defendant: "is serving a lengthy term as a result of the charges upon which he has been convicted and he sees based on our discussions that there is a strong likelihood that if we had a retrial that he would be convicted of the attempted murder charges, and he would not know what the sentence would be and whether it would be concurrent or consecutive. The offer here had been for him to plead to the charge and receive the minimum sentence to run concurrent with the sentence he is serving. And he has indicated to me that he wishes to make the voluntary choice to accept this opportunity to plead and receive this concurrent sentence" (A 490). 8 The court then directed the prosecutor to explain what the proof at trial would be as to attempted murder, which the prosecutor did (A 493-496). Defense counsel agreed as to what the trial evidence would be (A 497). After a pause for counsel to speak further with defendant, counsel stated that defendant "indicates that while he disputes the issues and maintains exactly what he testified to under oath at the trial, that he does not dispute that this is what the testimony would be should we have a retrial in this case" (A 498). Defendant confirmed that statement (A 498) and then pleaded guilty (A 501 ). The court imposed the promised indeterminate sentence of 15 years to life, to run concurrently with the previously imposed sentences (A 501). THE APPELLATE DIVISION'S DECISION On appeal to the Appellate Division, Fourth Department, defendant, inter alia, raised the issues now advanced in his brief, and also contended that the sentences for the attempted robberies could not run consecutively to each other. The Appellate Division agreed with defendant as to that last point and modified the sentence accordingly (A 9). As between the robbery and the attempted robberies, however, the court found that consecutive sentencing was permissible (A 9-10). Although these crimes were part of a single transaction, the robbery "included an additional act, i.e., the taking of the purse, which allowed the court to impose a consecutive sentence thereon" (A 10). 9 As to assistance of counsel, the Appellate Division found that defendant received an advantageous plea on the attempted murder and the record revealed no ineffectiveness (A 10). The court further detennined that "a concurrent sentence was not required for the attempted murder count ... because the shooting of the male victim was an act separate and distinct from" the other criminal acts of which defendant was convicted (A 10). Accordingly, as modified, the judgments of conviction were affirmed. Thereafter, leave to appeal to this Court was granted by the Honorable Leslie E. Stein (A 2-3). 10 POINT I The attempted robbery in the first degree sentences could run consecutively to the robbery in the first degree sentence. The attempted robbery in the first degree sentences could run consecutively to the robbery in the first degree sentence. Concurrent sentencing is required "[ w ]hen more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other" (Penal Law § 70.25 [2]). In order to detennine whether that condition exists, this Court prescribes a two-stage inquiry. "[T]he sentencing court must first examine the statutory definitions of the crimes for which defendant has been convicted" (People v Laureano, 87 NY2d 640, 643 [ 1996] [citations omitted]). Unless "the actus reus element is, by definition, the same for both offenses . .. or [ ] the actus reus for one offense is, by definition, a material element of the second offense . .. then the People have satisfied their obligation of showing that concurrent sentences are not required" (id. [citations omitted]). Even if there is overlap at the first stage of the Laureano test, the sentencing court must still consider whether "the 'acts or omission' committed by defendant were separate and distinct acts" (id.). If they are, consecutive sentencing is ll pennissible even though the statutory elements of the crimes overlap (id. ). For the purposes of this test, the acts in question are "the actus reus or 'wrongful deed that comprises the physical components of a crime and that generally must be coupled with mens rea to establish criminal liability' "(People v McKnight, 16 NY3d 43, 48 [2010], quoting People v Rosas, 8 NY3d 493,496 n. 2 [2007]). The statutory elements here do overlap. By definition, attempted robbery in the first degree consists of intending to commit robbery in the first degree and "engag[ing] in conduct which tends to effect the commission of such crime" (§ 110.00). Thus, the actus reus of the attempt is conduct tending to effect the commission of robbery in the first degree. Conduct tending to effect the commission of robbery in the first degree is a material element of robbery in the first degree, just as any attempt is a material element of the completed crime. Nevertheless, the availability of consecutive sentencing is established under the second stage of the Laureano test. The act comprising each of the attempted robberies was the display of the firearm and command to get on the ground. The act comprising the completed robbery, on the other hand, was the display of the firearm, the kicking, and the taking of Belknap's purse. That was a separate and distinct act regardless of the fact that "the use of a fireann was an element of each of the convictions" (People v Yong Yun Lee, 92 NY2d 987, 989 [1998]). 12 The situation is similar to People v Ramirez (89 NY2d 444 [ 1996]), where a man displaying an automatic weapon ordered two security guards to lie down on the ground (id. at 448). When one of the guards moved, he was shot repeatedly. The robbers then stole the guns from both guards and money from inside their vehicle (id. at 449). The defendant, as one of the robbers, was charged with, inter alia, nine counts of robbery: three relating to the theft from the uninjured guard, three relating to the theft from the guard who was shot, and three relating to the theft of money (id.). This Court found that the forcible taking from the uninjured guard was a material element of the robbery of the money from the vehicle, and therefore all of the sentences relating to those two thefts had to run concurrently (id. at 454). Consecutive sentences were, however, permissible for the counts relating to the theft from the guard who was shot (id. ). Although "the crimes were temporally close is a single criminal episode," the "entire tenor" of the robberies was "distinct" (id.). Just as in Ramirez, so here the fact that the transaction began with the display of a firearm and a common command for the victims to get on the ground did not mean that concurrent sentencing was required for the subsequent robbery. The act of kicking the purse to a companion who then took it was a successive, separate act that was distinct from the force used against the other victims. 13 Accordingly, the court was not prevented, as a matter of law, from running the attempted robbery sentences consecutively to the robbery sentence. 14 POINT II Defendant was not deprived of effective assistance of counsel. Defendant was not deprived of effective assistance of counsel in relation to the Alford plea. Defendant contends that counsel incorrectly informed him that he faced possible consecutive sentencing on the attempted murder in the first degree charge and that, had he not been misinformed, there is a reasonable probability that he would have rejected the plea offer and proceeded to trial. But counsel was not incorrect about the sentencing on the attempted murder. This Court's recent decision in People v Rodriguez (25 NY3d 238 [2015]) addressed a similar situation. There, the defendant displayed a firearm to his victim and demanded the victim's gold chain (id. at 241). As the victim was complying, the defendant shot him multiple times (id.). An accomplice then took the necklace (id.). Defendant ultimately received consecutive sentences for robbery in the first degree (Penal Law § 160.15 [ 4]) and assault in the first degree (§ 120.10 [1]). This Court determined that the consecutive sentencing was lawful because, even if the acts constituting these crimes overlapped by definition, they were separate and distinct for sentencing purposes. The act of shooting was "completely unrelated to any use of force necessary to overcome resistance or compel compliance in order to effectuate robbery" (id. at 244). 15 This Court further determined that "since the jury need not have concluded under the instructions given that the assault occurred in furtherance of the robbery, as compared to merely during the course thereof, we reject defendant's claim that the robbery and assault were necessarily a single act because he was also charged with and convicted of robbery under Penal Law§ 160.15 (1)" (id. at 245, citing People v Parks, 95 NY2d 811, 815 [2000]). By the comparison with Parks, which involved felony murder, the decision in Rodriguez indicates that the result would be different in the case of a robbery and a felony murder with that robbery as the underlying felony. But attempted murder in the first degree is conceptually distinct from felony murder. Thus, although here the instructions on attempted murder in the first degree included an "in furtherance" clause (A 738), the determination in Rodriguez should not be extended here to make consecutive sentencing impermissible on robbery in the first degree and attempted murder in the first degree. Felony murder presents a very different situation because there the actus reus of the statute is the underlying felony. By a "legal fiction" the underlying felony is elevated to murder and the killing need not even be "committed by one of the people engaged in the commission of the underlying crime" (People v Cahill, 1 NY3d 14, 68 [2003]). Murder in the first degree is conceptually different from 16 felony murder and the two statutes "have entirely different objectives and constituents, and were statutorily constructed to reach different types of homicides and different categories of defendants" (id.). Thus, defendant's attempt to characterize murder in the first degree as "intentional felony murder" is inaccurate. In contrast to felony murder, the "in furtherance" element of the attempted murder is part of the mens rea rather than the actus reus. Whether or not one takes an action for the purpose of furthering some goal is not a matter of "bodily movement" (Penal Law§ 15.00 [1]). The act is the same regardless of the intent to further the goal. That relates rather to the mental state "with respect to a result or to conduct" (see§ 15.05 [1]). Thus, the acts constituting robbery and attempted murder are separate even though the intents served by those separate acts are interrelated. In People v Frazier ( 16 NY3d 36 [20 I 0]), for example, this Court found that consecutive sentencing was permissible for a burglary and the underlying larceny committed inside the dwelling (id. at 41 ). Although larceny was included in the burglary charge in the sense that it was the crime defendant intended to commit upon entering, the burglary and larceny statutes "do not contain the same actus reus" even if they share the same intent (id.). Thus, neither crime is "a material element of the other for sentencing purposes, as larceny is not a necessary component of 17 burglary" (id. ). The same is true with respect to robbery in the first degree and attempted murder in the first degree. Therefore, consecutive sentencing is permissible. Furthermore, even if this Court determines otherwise as to the sentencing issue, defendant has failed to demonstrate that counsel was constitutionally ineffective. A unanimous panel at the Appellate Division concluded that consecutive sentencing would have been permissible "because the shooting of the male victim was an act separate and distinct" from the acts constituting the other crimes in the transaction (A 10). Even if this Court disagrees, a defense counsel cannot be expected to have flawlessly predicted such a result years in advance. Defense counsel stated that defendant "would not know" whether he would receive consecutive sentencing on a conviction after retrial (A 490). That was correct. This Court can resolve the consecutive sentencing issue in this case definitively, but it was still an uncertain matter at the time of the plea. Faced with that uncertainty, defendant made a decision to trade that risk for the certainty of a concurrent minimum sentence. That was a perfectly rational decision and it was not based on misinformation by counsel. The sentencing issue is not "so obvious that any reasonable lawyer" would have advised defendant that consecutive sentencing was an impossibility (People v Lovett, 25 NY3d 1088, 1095 [2015]). 18 POINT III Defendant is not entitled to vacatur of his Alford plea on the ground that he negated an element. Defendant is not entitled to vacatur of h.is Alford plea on the ground that his plea colloquy negated an element. That is the very nature of an Alford plea (see North Carolina v Alford, 400 US 25 [ 1970]). Defendant pleaded guilty while maintaining that he was innocent. Thus, "Alford stands at the outer reaches of [this Court's] settled doctrine that if a defendant's recitation of the facts negates an essential element of the crime, raising substantial doubt as to guilt, the trial court must inquire further to ensure that defendant's guilty plea is both knowing and voluntary" (Matter of Silmon v Travis, 95 NY2d 470,474 n. 1 [2000]). Where the defendant seeks to enter an Alford plea, the trial court must ensure that there is "strong evidence of actual guilt" so that the defendant's decision to plead guilty notwithstanding the claim of innocence is a voluntary and rational choice (id. at 475). The court did so here. Defense counsel noted for the record that the jury had voted eleven to one to convict on the charge of attempted murder in the first degree (A 488). Although defendant had testified that the gun went off accidentally, "that was not the testimony from the prosecution witnesses" (A 489). Indeed, contrary to defendant's testimony, the prosecution witnesses heard defendant cock the gun 19 right before placing it to the back of Lewis's head and firing (A 90-91, 117, 119). Thus, counsel acknowledged that "there is a strong likelihood that if we had a retrial that [defendant] would be convicted of the attempted murder charge" (A 489). After the prosecutor further elaborated on the testimony that would be presented at a retrial, defendant acknowledged that such would be the testimony (A 498). Based on those discussions, there is "strong evidence of guilt" and defendant's Alford plea was voluntary and rational. Nothing more was required. 20 CONCLUSION The judgment of conviction should be affirmed. Dated: October 21, 2015 21 Respectfully submitted, SANDRA DOORLEY Monroe County District Attorney BY~~ Y j