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People v. Brown

Appellate Division of the Supreme Court of New York, Third Department
Oct 30, 2003
309 A.D.2d 1084 (N.Y. App. Div. 2003)

Opinion

14230

Decided and Entered: October 30, 2003.

Appeal from a judgment of the County Court of Columbia County (Czajka, J.), rendered July 24, 2002, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

Mark Diamond, Albany, for appellant.

Beth G. Cozzolino, District Attorney, Hudson (Kenneth L. Golden of counsel), for respondent.

Before: Mercure, J.P., Peters, Spain, Rose and Kane, JJ.


MEMORANDUM AND ORDER


In satisfaction of three outstanding charges of criminal sale of controlled substances, defendant signed a five-page waiver of rights form, which included a waiver of indictment, and he pleaded guilty to a superior court information charging him with criminal sale of a controlled substance in the third degree. At the plea allocution, defendant stated that he had sold cocaine to a lady in a van on the date charged, and he waived his right to appeal. At sentencing, defendant admitted that he had been previously convicted of the same felony. He was then sentenced to 4½ to 9 years in prison, the minimum sentence for a second felony offender. Arguing that his waiver of his right to appeal and his plea of guilty were invalid due to an inadequate allocution, and that his sentence as a second felony offender was illegal, defendant appeals.

Defendant's challenges to both his waiver and his plea are unpreserved for our review by his failure to move to either withdraw his guilty plea or vacate the judgment of conviction (see People v. Camp, 302 A.D.2d 629, 630; People v. Gonzalez, 299 A.D.2d 581, 582). In any event, were we to consider his arguments, we would find them to be meritless inasmuch as he admitted to facts satisfying each element of the crime to which he pleaded guilty (see People v. Echandy, 306 A.D.2d 693, 694) and his prior conviction belies his claim that he did not know what it meant to "sell" drugs. Moreover, the five-page waiver executed here explicitly and exhaustively informed defendant of his rights. The waiver form also included a CPL 400.21(2) statement of defendant's predicate felony conviction. Thus, defendant was properly provided with a copy of the prior felony statement pursuant to CPL 400.21(3). Finally, he admitted the prior conviction at sentencing when County Court provided him with an opportunity to controvert the allegation (see People v. Kennedy, 277 A.D.2d 814, 815, lv denied 96 N.Y.2d 760; People v. Goodings, 277 A.D.2d 725, lv denied 96 N.Y.2d 735).

Mercure, J.P., Peters, Spain and Kane, JJ., concur.

ORDERED that the judgment is affirmed.


Summaries of

People v. Brown

Appellate Division of the Supreme Court of New York, Third Department
Oct 30, 2003
309 A.D.2d 1084 (N.Y. App. Div. 2003)
Case details for

People v. Brown

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LOUIS T. BROWN…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Oct 30, 2003

Citations

309 A.D.2d 1084 (N.Y. App. Div. 2003)
766 N.Y.S.2d 401

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