Opinion
110282
03-30-2023
The People of the State of New York, Respondent, v. Kareem Graham, Also Known as Jamel, Appellant.
Salvatore C. Adamo, Albany, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Calendar Date:February 22, 2023
Salvatore C. Adamo, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Aarons, Reynolds Fitzgerald and Ceresia, JJ.
Garry, P.J.
Appeal from a judgment of the Supreme Court (Kathleen B. Hogan, J.), rendered January 16, 2018 in Schenectady County, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.
Defendant pleaded guilty to criminal sale of a controlled substance in the third degree in satisfaction of a four-count indictment that followed two controlled buys of crack cocaine. Pursuant to a plea agreement that included an oral and written waiver of appeal, defendant was sentenced, purportedly as a second felony offender, to a prison term of 4½ years, to be followed by three years of postrelease supervision. Defendant appeals.
We affirm. Defendant's contention that his plea was not knowing, voluntary and intelligent, in that it was the product of coercion, survives the appeal waiver but is not preserved for our review absent an appropriate postallocution motion, despite ample time in which to do so prior to sentencing (see People v Conceicao, 26 N.Y.3d 375, 381-382 [2015]; People v Peque, 22 N.Y.3d 168, 182-183 [2013], cert denied 574 U.S. 840 [2014]; People v Favreau, 174 A.D.3d 1226, 1227 [3d Dept 2019], lv denied 34 N.Y.3d 980 [2019]). Moreover, defendant made no remarks at any point that triggered the narrow exception to the preservation requirement (see People v Pastor, 28 N.Y.3d 1089, 1090-1091 [2016]; People v Williams, 27 N.Y.3d 212, 214 [2016]; People v Lopez, 71 N.Y.2d 662, 665-666 [1988]). Were we to address these claims, we would find that they are not supported by the record, which reflects that the terms of the plea agreement, consequences of the guilty plea and potential predicate sentencing exposure were clearly outlined for defendant, who discussed them with defense counsel. Defendant indicated that he understood, accepted the terms and assured Supreme Court that he had not been pressured or coerced to accept the agreement. The court's advisement at the arraignment that defendant could potentially be sentenced as a persistent felon based upon his five prior felony convictions, for which the People clearly indicated they had not analyzed his eligibility, was not unduly coercive, and, contrary to defendant's claim, the record does not demonstrate that this was incorrect (see Penal Law § 70.10 [1] [a]). As such, we would find that the pressure to which defendant now contends he was subjected amounts to no more than "the type of situational coercion faced by many defendants who are offered a plea deal" (People v LaPierre, 189 A.D.3d 1813, 1815 [3d Dept 2020] [internal quotation marks and citations omitted], lv denied 36 N.Y.3d 1098 [2021]; accord People v Agueda, 202 A.D.3d 1153, 1155 [3d Dept 2022], lv denied 38 N.Y.3d 1031 [2022]).
Defendant's further claim that he received ineffective assistance of counsel, to the extent that it implicates the voluntariness of his plea, also survives the unchallenged waiver of appeal but is similarly unpreserved (see People v Agueda, 202 A.D.3d at 1154). Moreover, counsel secured a favorable plea deal that avoided potential consecutive sentencing for separate drug sales (see Penal Law § 70.25 [1] [b]; [2]; People v Huebsh, 199 A.D.3d 1174, 1176 [3d Dept 2021], lv denied 37 N.Y.3d 1161 [2022]) and advocated for sentencing leniency based upon defendant's addiction, and "nothing in the record casts doubt upon the apparent effectiveness of counsel" (People v Fish, 208 A.D.3d 1546, 1549 [3d Dept 2022] [internal quotation marks and citations omitted]). Concerning counsel's failure to move to withdraw defendant's guilty plea, the record does not disclose that defendant wished to do so or counsel's advice in that regard, and, in any event, defendant failed to establish that counsel lacked a legitimate or strategic reason for foregoing such a motion (see People v Wright, 25 N.Y.3d 769, 779 [2015]; People v Fish, 208 A.D.3d at 1549) or that such a motion had potential merit (see People v Caban, 5 N.Y.3d 143, 152 [2005]; People v Maddox, 208 A.D.3d 1535, 1536 [3d Dept 2022], lv denied 39 N.Y.3d 963 [2022]; People v LaPierre, 195 A.D.3d 1301, 1307 [3d Dept 2021]). To the extent that defendant also relies upon matters outside of the record, they are more appropriately addressed in a CPL article 440 motion (see People v Maddox, 208 A.D.3d at 1536). Defendant's challenge to the lawful sentence (see Penal Law § 70.70 [1] [b]; [3] [b] [i]; CPL 60.04 [1], [3]) as unduly harsh or severe is precluded by his unchallenged waiver of appeal (see People v Lopez, 6 N.Y.3d 248, 256 [2006]; People v Agueda, 202 A.D.3d at 1154).
Finally, although not raised by the parties, we note a discrepancy between the sentence imposed, which was a determinate sentence of 4½ years, and Penal Law § 70.06 (2), which requires that, "when the court has found... that a person is a second felony offender[,] the court must impose an indeterminate sentence of imprisonment." Supreme Court purported to sentence defendant as a second felony offender, rather than a second felony drug offender; under the latter circumstances, the determinate sentence imposed would be proper (see Penal Law § 70.70 [2] [a] [i]). The uniform sentence and commitment form contains the same error. Since the record reveals that defendant is a second felony drug offender, and the sentence is otherwise proper, the uniform sentence and commitment form must be amended accordingly (see People v Carrington, 194 A.D.3d 1253, 1255 [3d Dept 2021]; People v Scharborough, 189 A.D.3d 1964, 1967 [3d Dept 2020]).
The record does not contain a certificate of conviction, which may contain the same error; Supreme Court should determine whether the certificate of conviction is erroneous and amend it if necessary.
Egan Jr., Aarons, Reynolds Fitzgerald and Ceresia, JJ., concur.
ORDERED that the judgment is affirmed, and matter remitted for entry of an amended uniform sentence and commitment form.