Opinion
107773
03-08-2018
The PEOPLE of the State of New York, Respondent, v. Leslie GONZALEZ, Appellant.
Todd G. Monahan, Schenectady, for appellant. Robert M. Carney, District Attorney, Schenectady (Daniel Young, Law Intern), for respondent.
Todd G. Monahan, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Daniel Young, Law Intern), for respondent.
Before: Garry, P.J., McCarthy, Egan Jr., Lynch and Pritzker, JJ.
MEMORANDUM AND ORDER
McCarthy, J.Appeal from a judgment of the County Court of Schenectady County (Murphy III, J.), rendered May 20, 2015, convicting defendant upon her plea of guilty of the crime of robbery in the third degree.
Defendant waived indictment and agreed to be prosecuted by a superior court information charging her with robbery in the third degree. She pleaded guilty to that crime in satisfaction of several other charges related to the robbery incident, as well as other charges related to a separate incident. Under the terms of the plea agreement, she was to be sentenced to 1? to 4 years in prison. Prior to sentencing, however, defendant was arrested and charged with assault in the second degree. As a result of a new agreement to satisfy that assault charge, as well as all prior charges in exchange for a higher sentence on the robbery conviction, County Court sentenced defendant to a prison term of 2 to 6 years on the robbery conviction and adhered to the other terms of the plea agreement. Defendant appeals.
Defendant contends that County Court committed reversible error by imposing an enhanced sentence without having administered an Outley warning at the time that she entered her guilty plea and by not giving her the opportunity to withdraw her guilty plea. This claim has not been preserved for our review due to defendant's failure to object at sentencing or move to withdraw her guilty plea (see People v. Moore, 149 A.D.3d 1349, 1349, 50 N.Y.S.3d 309 [2017], lv denied 29 N.Y.3d 1131, 64 N.Y.S.3d 681, 86 N.E.3d 573 [2017] ; People v. Garrow, 147 A.D.3d 1160, 1161–1162, 47 N.Y.S.3d 744 [2017] ; People v. Bennett, 143 A.D.3d 1008, 1009, 38 N.Y.S.3d 290 [2016] ). Defendant also argues that counsel was ineffective by failing to object to the enhanced sentence. This claim is similarly unpreserved for our review (see People v. Smith, 121 A.D.3d 1131, 1132, 993 N.Y.S.2d 392 [2014], lv denied 24 N.Y.3d 1123, 3 N.Y.S.3d 764, 27 N.E.3d 478 [2015] ). In any event, this claim fails because defendant has not established that counsel lacked a strategic reason for this omission (see People v. Saylor, 132 A.D.3d 1018, 1018–1019, 17 N.Y.S.3d 324 [2015] ; People v. Whitted, 12 A.D.3d 840, 841, 784 N.Y.S.2d 690 [2004], lv denied 4 N.Y.3d 769, 792 N.Y.S.2d 12, 825 N.E.2d 144 [2005] ), inasmuch as defendant was spared the possibility of an additional felony conviction for assault in the second degree and the higher sentence she received on the robbery conviction still resulted in a lower cumulative sentence than if defendant had been separately convicted of and sentenced on the assault charge as well.ORDERED that the judgment is affirmed.
Garry, P.J., Egan Jr., Lynch and Pritzker, JJ., concur.