Opinion
2017–09995 Ind.No. 14/17
01-22-2020
The PEOPLE, etc., respondent, v. Robert ANDERSON, also known as Chuck, appellant.
Yasmin Daley Duncan, Brooklyn, NY, for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
Yasmin Daley Duncan, Brooklyn, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, JOHN M. LEVENTHAL, LINDA CHRISTOPHER, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Dutchess County (Peter M. Forman, J.), rendered August 29, 2017, as amended December 12, 2017, convicting him of criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment, as amended, is affirmed.
On August 10, 2017, the defendant pleaded guilty to criminal sale of a controlled substance in the third degree in exchange for a promised sentence of a term of five years' imprisonment, plus a period of three years' postrelease supervision (hereinafter the promised sentence). On August 29, 2017, the County Court imposed the promised sentence. Thereafter, upon realizing that the defendant should have been sentenced as a second felony offender, the court, at a proceeding held on December 12, 2017, adjudicated the defendant a second felony offender and amended the judgment accordingly, without disturbing the promised sentence.
The defendant contends that his plea was not voluntary, knowing, or intelligent because he was not advised at the time of the plea that he would be sentenced as a second felony offender. The defendant's contention is unpreserved for appellate review because the defendant was made aware that he would be adjudicated a second felony offender at the outset of the December 12, 2017, proceeding, was given an opportunity to ask questions as to the reason why the adjudication was being made, and nonetheless failed to move to withdraw his plea before the court rendered the judgment, as amended, which otherwise simply reimposed the promised sentence (see CPL 220.60[3] ; People v. Williams, 27 N.Y.3d 212, 214, 219–220, 222, 32 N.Y.S.3d 17, 51 N.E.3d 528 ; People v. Crowder, 24 N.Y.3d 1134, 1136–1137, 3 N.Y.S.3d 309, 26 N.E.3d 1164 ; People v. Murray, 15 N.Y.3d 725, 726–727, 906 N.Y.S.2d 521, 932 N.E.2d 877 ; People v. DeValle, 94 N.Y.2d 870, 872, 704 N.Y.S.2d 924, 726 N.E.2d 476 ; People v. Ullah, 130 A.D.3d 759, 760, 12 N.Y.S.3d 307 ). We decline to reach the contention in the exercise of our interest of justice jurisdiction. The defendant's further challenge to the voluntariness of his plea is without merit (see People v. Copes, 145 A.D.3d 1639, 44 N.Y.S.3d 833 ; People v. Johnson, 137 A.D.3d 1419, 1420, 28 N.Y.S.3d 134 ).
The promised sentence was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
MASTRO, J.P., CHAMBERS, LEVENTHAL and CHRISTOPHER, JJ., concur.