Opinion
285 KA 16–02221
05-01-2020
The PEOPLE of the State of New York, Respondent, v. Martin DELGADO, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, LINDLEY, CURRAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree ( Penal Law § 265.03[3] ). We note at the outset that the notice of appeal does not state the complete date of the judgment from which the appeal is taken. The notice of appeal is otherwise accurate, however, and we therefore "exercise our discretion, in the interest of justice, and treat the notice of appeal as valid" ( People v. Mitchell, 93 A.D.3d 1173, 1173, 940 N.Y.S.2d 393 [4th Dept. 2012], lv . denied 19 N.Y.3d 999, 951 N.Y.S.2d 475, 975 N.E.2d 921 [2012] ; see CPL 460.10[6] ; People v. Rounds, 140 A.D.3d 1657, 1658, 34 N.Y.S.3d 279 [4th Dept. 2016], lv . denied 28 N.Y.3d 1031, 45 N.Y.S.3d 382, 68 N.E.3d 111 [2016] ).
Defendant contends that his plea was not voluntary because it was induced by Supreme Court's promise to grant him a "violent felony override" so that defendant could participate in certain programs of the Department of Corrections and Community Supervision, such as temporary release, a promise that he argues the court lacked the power to make (see People v. Ballato, 128 A.D.3d 846, 847, 9 N.Y.S.3d 152 [2d Dept. 2015] ). Initially, we agree with defendant that his contention "is not subject to the preservation requirement, since he could not be expected to object to the ... [c]ourt's [purported illusory] promise under the circumstances" ( id. ; cf. People v. Turner, 24 N.Y.3d 254, 258, 997 N.Y.S.2d 671, 22 N.E.3d 179 [2014] ). We reject defendant's contention, however, because the record establishes that "neither [his] eligibility for [the temporary release program] ... nor his ultimate" admission to such a program "was a condition of the plea" ( People v. Williams, 84 A.D.3d 1417, 1418, 924 N.Y.S.2d 539 [2d Dept. 2011], lv . denied 17 N.Y.3d 863, 932 N.Y.S.2d 28, 956 N.E.2d 809 [2011] ; see also People v. Demick, 138 A.D.3d 1486, 1486, 29 N.Y.S.3d 215 [4th Dept. 2016], lv . denied 27 N.Y.3d 1150, 39 N.Y.S.3d 384, 62 N.E.3d 124 [2016] ).