Opinion
2012-07-19
The PEOPLE of the State of New York, Respondent, v. Kenneth JOHNSON, Appellant.
Raymond M. White, Glenmont, for appellant, and appellant pro se. P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), for respondent.
Raymond M. White, Glenmont, for appellant, and appellant pro se. P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), for respondent.
Before: MERCURE, J.P., ROSE, KAVANAGH, McCARTHY and EGAN JR., JJ.
EGAN JR., J.
Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered April 7, 2010, convicting defendant upon his plea of guilty of the crime of attempted assault in the second degree.
Defendant was indicted and charged with two counts of assault in the second degree following a scuffle with two deputies at the Albany County Correctional Facility, where he was an inmate. In full satisfaction of that indictment, defendant waived his right to appeal and pleaded guilty to one count of attempted assault in the second degree—with the understanding that he would be sentenced to a prison term of 1 1/2 to 3 years. At sentencing, however, County Court imposed a prison term of 2 to 4 years, prompting this appeal.
We affirm. Although defendant's motion to dismiss the indictment was timely ( seeCPL 190.50[5][c] ), any assertion that he was denied the right to appear and testify before the grand jury is both encompassed by his valid waiver of the right to appeal ( see People v. Watkins, 77 A.D.3d 1403, 1404, 909 N.Y.S.2d 233 [2010],lv. denied15 N.Y.3d 956, 917 N.Y.S.2d 116, 942 N.E.2d 327 [2010];People v. Winchester, 38 A.D.3d 1336, 1337, 831 N.Y.S.2d 798 [2007],lv. denied9 N.Y.3d 853, 840 N.Y.S.2d 779, 872 N.E.2d 892 [2007] ) and waived by his subsequent guilty plea ( see People v. Steed, 17 A.D.3d 928, 929, 793 N.Y.S.2d 620 [2005],lv. denied5 N.Y.3d 770, 801 N.Y.S.2d 264, 834 N.E.2d 1274 [2005];People v. Chappelle, 250 A.D.2d 878, 878–879, 673 N.Y.S.2d 751 [1998],lv. denied92 N.Y.2d 894, 680 N.Y.S.2d 58, 702 N.E.2d 843 [1998];People v. Torra, 191 A.D.2d 738, 738, 594 N.Y.S.2d 419 [1993],lv. denied81 N.Y.2d 1021, 600 N.Y.S.2d 209, 616 N.E.2d 866 [1993] ). Moreover, defendant has not alleged—and we are unable to discern—any special circumstances that would warrant a departure from this general rule ( see People v. Dennis, 223 A.D.2d 814, 815, 636 N.Y.S.2d 453 [1996],lv. denied87 N.Y.2d 972, 642 N.Y.S.2d 201, 664 N.E.2d 1264 [1996] ).
As for defendant's claim that County Court abused its discretion in imposing an enhanced sentence, although this argument survives defendant's waiver of appeal ( see People v. Donnelly, 80 A.D.3d 797, 798, 914 N.Y.S.2d 385 [2011] ), the record does not reflect that defendant moved to withdraw his plea or vacate the judgment of conviction; accordingly, this issue is unpreserved for our review ( see id. at 798, 914 N.Y.S.2d 385;People v. Armstead, 52 A.D.3d 966, 967, 859 N.Y.S.2d 506 [2008] ). In any event, “[w]here a court determines that the negotiated sentence is not appropriate, it may impose an enhanced sentence if it first offers the defendant the opportunity to withdraw his or her plea” ( People v. Sanchez, 87 A.D.3d 1226, 1226, 930 N.Y.S.2d 86 [2011],lv. denied 18 N.Y.3d 928, 942 N.Y.S.2d 467, 965 N.E.2d 969 [2012];accord. People v. Mattucci, 92 A.D.3d 1029, 1029–1030, 937 N.Y.S.2d 727 [2012];see People v. Wilson, 69 A.D.3d 970, 971, 892 N.Y.S.2d 627 [2010] ). County Court did precisely that here, and defendant declined the invitation to withdraw his plea. Under these circumstances, we find no abuse of discretion in County Court's decision to enhance the sentence ( see People v. Mattucci, 92 A.D.3d at 1030, 937 N.Y.S.2d 727;People v. Wilson, 69 A.D.3d at 971, 892 N.Y.S.2d 627). Defendant's remaining contentions, to the extent that they are properly before us, have been examined and found to be lacking in merit.
ORDERED that the judgment is affirmed.