Opinion
2017–01014 Ind. No. 649/15
06-05-2019
The PEOPLE, etc., Respondent, v. John ROGERS, Appellant.
Laurette D. Mulry, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant. Timothy D. Sini, District Attorney, Riverhead, N.Y. (Timothy P. Finnerty and Guy Arcidiacono of counsel), for respondent.
Laurette D. Mulry, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, N.Y. (Timothy P. Finnerty and Guy Arcidiacono of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Suffolk County (John J. Toomey, Jr., J.), rendered December 21, 2016, convicting him of criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant pleaded guilty to criminal sale of a controlled substance in the third degree (see Penal Law § 220.39[1] ), and was sentenced in accordance with the plea agreement.
The defendant contends that his plea of guilty was not voluntary, knowing, and intelligent because the County Court failed to advise him that, as a result of his conviction, he may potentially receive a sentence of life imprisonment for a subsequent conviction. Although the defendant validly waived his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 341, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 ; People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ), his claim with respect to the voluntariness of the plea survives such a waiver (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Murphy, 114 A.D.3d 704, 705, 979 N.Y.S.2d 829 ; People v. Joseph, 103 A.D.3d 665, 959 N.Y.S.2d 261 ). The defendant, however, failed to preserve for appellate review his claim that the plea was involuntary (see CPL 220.60[3] ; People v. Peque, 22 N.Y.3d 168, 182, 980 N.Y.S.2d 280, 3 N.E.3d 617 ; People v. Sanchez–Martinez, 35 A.D.3d 632, 633, 829 N.Y.S.2d 121 ; People v. Outer, 197 A.D.2d 543, 544, 602 N.Y.S.2d 215 ). In any event, the record demonstrates that the court properly advised the defendant that as a result of his conviction, he might receive an enhanced sentence for a subsequent conviction (cf. People v. McGrath, 43 N.Y.2d 803, 804, 402 N.Y.S.2d 390, 373 N.E.2d 284 ; People v. Taylor, 60 A.D.3d 708, 709, 874 N.Y.S.2d 531 ; People v. Sanchez–Martinez, 35 A.D.3d at 633, 829 N.Y.S.2d 121 ; People v. Outer, 197 A.D.2d at 544, 602 N.Y.S.2d 215 ), and that the defendant's plea was entered voluntarily, knowingly, and intelligently (see People v. Conceicao, 26 N.Y.3d 375, 382–383, 23 N.Y.S.3d 124, 44 N.E.3d 199 ; People v. Harris, 61 N.Y.2d 9, 19, 471 N.Y.S.2d 61, 459 N.E.2d 170 ).
MASTRO, J.P., LEVENTHAL, MALTESE and BRATHWAITE NELSON, JJ., concur.