Opinion
12-22-2016
The PEOPLE of the State of New York, Respondent, v. Edward P. FOLI, Appellant.
John A. Cirando, Syracuse, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Sophie J. Marmor of counsel), for respondent.
John A. Cirando, Syracuse, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Sophie J. Marmor of counsel), for respondent.
Before: PETERS, P.J., GARRY, DEVINE, MULVEY and AARONS, JJ.
PETERS, P.J.Appeal from a judgment of the County Court of Chemung County (Keene, J.), rendered December 16, 2013, convicting defendant upon his plea of guilty of the crime of criminal possession of stolen property in the fifth degree.
In satisfaction of a three-count indictment, defendant pleaded guilty to criminal possession of stolen property in the fifth degree. He was thereafter sentenced, in accordance with the plea agreement, to three years of probation. Defendant now appeals.
Initially, defendant's challenges to the voluntariness of his guilty plea and the effectiveness of his counsel have not been preserved for our review inasmuch as the record does not disclose that he made an appropriate postallocution motion (see People v. Constantopoules, 141 A.D.3d 942, 943, 34 N.Y.S.3d 912 [2016] ; People v. Beverly, 140 A.D.3d 1400, 1401, 34 N.Y.S.3d 245 [2016], lvs. denied 28 N.Y.3d 927, 933, 40 N.Y.S.3d 355, 361, 63 N.E.3d 75, 81 [2016] ). Moreover, the exception to the preservation rule is inapplicable here as defendant did not make any statements during the plea colloquy that cast doubt upon his guilt (see People v. Maldonado, 140 A.D.3d 1530, 1530, 33 N.Y.S.3d 778 [2016], lv. denied 28 N.Y.3d 1029, –––N.Y.S.3d ––––, ––– N.E.3d –––– [2016] ; People v. Hernandez, 140 A.D.3d 1521, 1522, 34 N.Y.S.3d 698 [2016], lv. denied 28 N.Y.3d 971, –––N.Y.S.3d ––––, ––– N.E.3d –––– [2016] ). Defendant's further claim that the sentence is harsh and excessive is unpersuasive. The sentence imposed was consistent with the terms of the plea agreement and allowed defendant to avoid potential jail time. The fact that his codefendants may have received lesser sentences does not establish that the sentence he received was unduly severe (see People v. Morrison, 71 A.D.3d 1228, 1230, 896 N.Y.S.2d 253 [2010], lv. denied 15 N.Y.3d 754, 906 N.Y.S.2d 827, 933 N.E.2d 226 [2010] ; People v. Boyd, 26 A.D.3d 534, 534, 809 N.Y.S.2d 266 [2006], lv. denied 7 N.Y.3d 752, 819 N.Y.S.2d 878, 853 N.E.2d 249 [2006] ). We find no extraordinary circumstances or any abuse of discretion warranting a reduction of the sentence in the interest of justice (see CPL 470.15[6][b] ).ORDERED that the judgment is affirmed.
GARRY, DEVINE, MULVEY and AARONS, JJ., concur.