Opinion
863 KA 12-00144
07-02-2015
The PEOPLE Of The State Of New York, Respondent, v. Ruben Jose BURGOS, Defendant–Appellant.
Frank J. Nebush, Jr., Public Defender, Utica (Patrick J. Marthage Of Counsel), for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox Of Counsel), for Respondent.
Frank J. Nebush, Jr., Public Defender, Utica (Patrick J. Marthage Of Counsel), for Defendant–Appellant.
Scott D. McNamara, District Attorney, Utica (Steven G. Cox Of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, SCONIERS, VALENTINO, AND DeJOSEPH, JJ.
Opinion
MEMORANDUM:Defendant appeals from a judgment convicting him upon a jury verdict of three counts each of criminal contempt in the first degree (Penal Law § 215.51[b][iii] ) and aggravated harassment in the second degree (§ 240.30[1][a] ). Defendant contends that his rejection of the plea offer was not voluntary, knowing, and intelligent because County Court misinformed him of the maximum sentence he could receive after trial. While we agree with defendant that the court's statement concerning his maximum sentencing exposure was erroneous, the record does not support his contention that reversal of the judgment of conviction is required (see People v. Lane, 221 A.D.2d 948, 948, 635 N.Y.S.2d 573, lv. denied 87 N.Y.2d 975, 642 N.Y.S.2d 204, 664 N.E.2d 1267,cert. denied 519 U.S. 829, 117 S.Ct. 94, 136 L.Ed.2d 50 ). Rather, the issue whether defendant would have accepted the plea offer absent the court's erroneous statement must be raised in a proceeding pursuant to CPL article 440, “wherein a record focused on this issue may be developed” (People v. Surowka, 103 A.D.3d 985, 986, 962 N.Y.S.2d 377 ; see e.g. People v. Ross, 123 A.D.3d 454, 454, 998 N.Y.S.2d 177 ; see also Matter of Dong Chong v. Annucci, 50 A.D.3d 1331, 1332, 855 N.Y.S.2d 751 ).
We reject defendant's further contention that his sentence is unduly harsh and severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.