An Auburn man accused of fatally strangling the mother of his child lost an appeal seeking to overturn the drug conviction that has kept him behind bars the past 15 months.
The state Appellate Division's Fourth Judicial Department, a Rochester-based appeals court, denied David McNamara's request to overturn his conviction for giving a prescription narcotic to a friend, dismissing his argument that his constitutional rights were violated.
During the appeal hearing, David Elkovitch, McNamara's defense attorney, argued that his client's conviction should be overturned because the Cayuga County Probation Department conducted a presentence interview with McNamara without Elkovitch, despite the defendant's request to have his attorney present during the meeting.
Elkovitch said he made a motion before the presentence report was conducted asking Judge Mark Fandrich to allow him to sit in on McNamara's interview. But before Fandrich issued a ruling, he said the probation department went forward with the interview.
Elkovitch said New York does not have statutes legislating whether or not attorneys have the right to be present when probation departments interview defendants during presentence investigations. Instead, he said the policy tends to vary from county to county.
Through appealing the matter, Elkovitch said he hoped the Rochester appeals court would set one standard for all counties to follow.
"That's the part that was the most important part of the appeal," he said.
In a written decision released Feb. 8, the court unanimously affirmed McNamara's conviction.
"Defendant concededly waived his right to appeal, which forecloses his present challenge to the severity of his sentence," wrote the judges.
McNamara, a former nurse, pleaded guilty to second-degree criminal possession of a forged instrument and fourth-degree criminal sale of a controlled substance in September 2011, admitting he attempted to fill a forged prescription for hydrocodone and gave suboxone to a friend. In exchange for his plea, the defendant was promised a sentence of five years in prison and two years of post-release supervision — a sentence Fandrich imposed.
The court also disagreed with Elkovitch's assertion that McNamara's rights were violated, stating that the federal Constitution does not give defendants the right to have an attorney present during presentence interviews.
"In any event, (the) defendant was sentenced in accordance with a plea agreement and sentencing promises that preceded both the presentence interview and the preparation of the presentence report," wrote the court. "Thus, any error in the court's refusal to suppress his statements therein is harmless."
District Attorney Jon Budelmann said he expected the court's ruling.
"The affirmance of defendant's 2011 felony drug/forgery conviction was all but pre-ordained," he said. "Defendant McNamara voluntarily, with the assistance of counsel, entered guilty pleas, waived his appellate review and was, in fact, given the negotiated, agreed upon prison sentence that he had bargained for."
Despite the Appellate Court's ruling, Elkovitch said he still plans to seek a state-wide standard for presentence interview policies. He said he would appeal the case to the Court of Appeals, New York's highest courts.
In the meantime, McNamara, currently housed in Romulus' Five Points Correctional Facility, will continue to serve out his five-year-long sentence for selling drug.
The 37-year-old man stands accused of murdering Katie Socci, his former girlfriend, in her Auburn home on June 14, 2011 as their toddler daughter slept in a nearby room. McNamara's trial for second-degree intentional murder is scheduled to start on March 18.