Opinion
2014-05-2
The PEOPLE of the State of New York, Respondent, v. Henry H. DONALDSON, Jr., Also Known As Puddin, Defendant–Appellant.
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of Counsel), for Defendant–Appellant. Lori Pettit Rieman, District Attorney, Little Valley (Amber L. Kerling of Counsel), for Respondent.
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of Counsel), for Defendant–Appellant. Lori Pettit Rieman, District Attorney, Little Valley (Amber L. Kerling of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, and WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal sale of a controlled substance in the fourth degree (Penal Law §§ 110.00, 220.34[1] ). Initially, we agree with defendant that his waiver of the right to appeal is invalid because “the minimal inquiry made by County Court was insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” ( People v. Box, 96 A.D.3d 1570, 1571, 946 N.Y.S.2d 525,lv. denied19 N.Y.3d 1024, 953 N.Y.S.2d 557, 978 N.E.2d 109 [internal quotation marks omitted]; see People v. Doxey, 112 A.D.3d 1364, 1364–1365, 976 N.Y.S.2d 918;People v. Jones, 107 A.D.3d 1589, 1589–1590, 966 N.Y.S.2d 724,lv. denied21 N.Y.3d 1075, 974 N.Y.S.2d 324, 997 N.E.2d 149), and because the court “improperly conflated the rights automatically forfeited by operation of law as the consequence of a guilty plea with those rights voluntarily relinquished as the consequence of a waiver of the right to appeal” ( People v. Daniels, 68 A.D.3d 1711, 1712, 891 N.Y.S.2d 815,lv. denied14 N.Y.3d 887, 903 N.Y.S.2d 775, 929 N.E.2d 1010).
We reject defendant's further contention that the court violated CPL 430.10 in resentencing him as a second felony offender. Contrary to defendant's contention, “ ‘the trial court had the inherent power to correct an illegal sentence’ over the defendant's objection where[, as here,] the corrected sentence fell within the range initially stated by the court” ( People v. DeValle, 94 N.Y.2d 870, 871–872, 704 N.Y.S.2d 924, 726 N.E.2d 476, quoting People v. Williams, 87 N.Y.2d 1014, 1015, 643 N.Y.S.2d 469, 666 N.E.2d 174,rearg. denied89 N.Y.2d 861, 653 N.Y.S.2d 284, 675 N.E.2d 1237;see People v. Coble, 17 A.D.3d 1165, 1165–1166, 794 N.Y.S.2d 549,lv. denied5 N.Y.3d 787, 801 N.Y.S.2d 807, 835 N.E.2d 667). The initial sentence was illegal because the information available to the court and the parties established that defendant was a second felony drug offender, and the court therefore could not impose a one-year period of postrelease supervision ( seePenal Law §§ 70.45[2][d]; 70.70[3][b][ii] ). Consequently, the People were required to file a predicate felony statement and the court, upon concluding that he had such a conviction, was required to sentence defendant as a second felony drug offender ( see generally People v. Stubbs, 96 A.D.3d 1448, 1450, 946 N.Y.S.2d 370,lv. denied19 N.Y.3d 1001, 951 N.Y.S.2d 478, 975 N.E.2d 924;People v. Griffin, 72 A.D.3d 1496, 1497, 899 N.Y.S.2d 771).
Finally, to the extent that defendant's contention that he was denied effective assistance of counsel at sentencing survives his guilty plea, we conclude that it lacks merit ( see People v. LaCroce, 83 A.D.3d 1388, 1388, 919 N.Y.S.2d 728,lv. denied17 N.Y.3d 807, 929 N.Y.S.2d 567, 953 N.E.2d 805). Defendant “receive[d] an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel” ( People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265).
We have considered defendant's remaining contentions and conclude that they lack merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.