Opinion
2021-04059
06-24-2021
The People of the State of New York, Respondent, v. Shamel Greene, Appellant.
Stephen W. Herrick, Public Defender, Albany (Steven M. Sharp of counsel), for appellant. P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Calendar Date:June 3, 2021.
Stephen W. Herrick, Public Defender, Albany (Steven M. Sharp of counsel), for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Before:Garry, P.J., Egan Jr., Aarons, Pritzker and Reynolds Fitzgerald, JJ.
Garry, P.J.
Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered January 26, 2018, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the second degree.
Defendant waived indictment and pleaded guilty to a superior court information charging him with criminal possession of a controlled substance in the second degree and waived his right to appeal with the understanding that he would be sentenced to a prison term of between seven and eight years followed by five years of postrelease supervision. County Court thereafter sentenced defendant, a second felony offender, to a prison term of eight years followed by five years of postrelease supervision. Defendant appeals.
Initially, defendant contends that he made statements at sentencing that negated an element of the crime and County Court thereafter failed to make a sufficient inquiry into such statement to ensure that the plea was knowing and voluntary or provide him an opportunity to withdraw his plea. We disagree. The charges stem from defendant being in possession of a package containing more than four ounces of heroin, which, as related by defendant, he was being paid to transport for someone from New York City to upstate New York. The presentence investigation report reflects that defendant stated during the interview that he "did not know specifically what was in the bag" that he was transporting. Upon inquiry from County Court at sentencing, defendant explained that he did not "go in" the package; however, he reaffirmed and acknowledged that he was in possession of narcotics and was taking responsibility for that. Even if defendant's statement triggered the narrow exception to the preservation rule, we find that, under the circumstances, the court made a sufficient inquiry to establish that the plea was knowingly and voluntarily entered (see People v Lopez, 71 N.Y.2d 662, 667-668 [1988]; People v Green, 153 A.D.3d 1518, 1519 [2017]; People v Bryant, 128 A.D.3d 1223, 1224-1225 [2015], lv denied 26 N.Y.3d 926 [2015]). "Having failed to express, in any way, dissatisfaction with the court's remedial action, defendant has waived any further challenge to the allocution, and thus no issue is preserved for our review" ( People v Lopez, 71 N.Y.2d at 668 [citation omitted]; see People v Ahrens, 145 A.D.3d 1322, 1322 [2016], lvs denied 28 N.Y.3d 1181, 1187 [2017]; People v Rich, 140 A.D.3d 1407, 1407 [2016], lv denied 28 N.Y.3d 936 [2016]). Accordingly, we find that defendant's plea was knowing, voluntary and intelligent ( see People v Lopez, 71 N.Y.2d at 667-668; People v Rich, 140 A.D.3d at 1407).
Defendant's contention that he was deprived of the effective assistance of counsel at sentencing, which is premised upon counsel's failure to aggressively advocate for a more favorable sentence, does not impact the voluntariness of the plea and, therefore, is precluded by the unchallenged waiver of the right to appeal (see People v Botts, 191 A.D.3d 1044, 1045 [2021], lv denied 36 N.Y.3d 1095 [2021]; People v White, 145 A.D.3d 1324, 1325 [2016]).
Egan Jr., Aarons, Pritzker and Reynolds Fitzgerald, JJ., concur.
ORDERED that the judgment is affirmed.