Opinion
2011-11-23
The PEOPLE of the State of New York, Respondent,v.Shantik T. SMITH, also known as Champ, Appellant.
Barrett D. Mack, Valatie, for appellant.James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), for respondent.Before: ROSE, J.P., LAHTINEN, KAVANAGH, McCARTHY and GARRY, JJ.
McCarthy, J.
Appeal from a judgment of the County Court of Saratoga County (Scarano, J.),
rendered December 2, 2010, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the fifth degree.
In satisfaction of a six-count indictment, defendant pleaded guilty to criminal sale of a controlled substance in the fifth degree in exchange for an agreed-upon sentence of 2 1/2 years in prison followed by a term of postrelease supervision between 1 1/2 and 3 years. At sentencing, defendant moved to withdraw his guilty plea, contending that he was not guilty and that his plea was not knowingly and intelligently made. County Court denied the motion without a hearing and sentenced defendant in accordance with the plea agreement to 2 1/2 years in prison followed by two years of postrelease supervision. Defendant appeals.
We affirm. The decision whether to allow a defendant to withdraw a guilty plea rests within the trial court's sound discretion, and a hearing is only required when the circumstances present a genuine question about the voluntariness of the plea ( see People v. Moreno, 86 A.D.3d 863, 864, 927 N.Y.S.2d 487 [2011]; People v. Shurock, 83 A.D.3d 1342, 1343, 920 N.Y.S.2d 862 [2011] ). Here, the record reveals that defendant was fully advised about the consequences of his plea, had the opportunity to discuss the matter with his attorney, understood the repercussions, and voluntarily and unequivocally admitted to the commission of the crime. Under the circumstances, we cannot say that County Court abused its discretion in denying defendant's application without a hearing based upon his unsubstantiated claims of innocence and ineffective assistance of counsel ( see People v. Moreno, 86 A.D.3d at 864–865, 927 N.Y.S.2d 487; People v. Herringshaw, 83 A.D.3d 1133, 1133–1134, 920 N.Y.S.2d 470 [2011] ).
Defendant next contends that he was improperly sentenced as a second felony offender, however, that claim is unpreserved for our review by virtue of his failure to make an objection at sentencing ( see People v. Califano, 84 A.D.3d 1504, 1506, 923 N.Y.S.2d 299 [2011], lv. denied 17 N.Y.3d 805, 929 N.Y.S.2d 564, 953 N.E.2d 802 [2011]; People v. Berry, 78 A.D.3d 1226, 1228, 910 N.Y.S.2d 281 [2010], lv. denied 16 N.Y.3d 828, 921 N.Y.S.2d 192, 946 N.E.2d 180 [2011] ). In any event, defendant pleaded guilty with the understanding that he would be sentenced as a second felony offender, a predicate felony statement was provided prior to sentencing, he admitted that he was the person convicted, and defense counsel, on defendant's behalf, declined the opportunity to controvert any aspect of the prior conviction. Under the circumstances, we find substantial compliance with CPL 400.21(3) ( see People v. Glynn, 72 A.D.3d 1351, 1352, 899 N.Y.S.2d 442 [2010], lv. denied 15 N.Y.3d 773, 907 N.Y.S.2d 462, 933 N.E.2d 1055 [2010]; People v. Atkinson, 58 A.D.3d 943, 944, 871 N.Y.S.2d 479 [2009] ).
Defendant cannot be heard to complain that the presentence investigation report was incomplete when this situation was caused by his refusal to be interviewed by the Probation Department ( see People v. Ali–Rachedi, 34 A.D.3d 981, 981, 824 N.Y.S.2d 451 [2006], lv. denied 8 N.Y.3d 878, 832 N.Y.S.2d 490, 864 N.E.2d 620 [2007]; People v. Rosado, 29 A.D.3d 430, 431, 814 N.Y.S.2d 638 [2006], lv. denied 7 N.Y.3d 794, 821 N.Y.S.2d 824, 854 N.E.2d 1288 [2006] ). Finally, defendant's contention that he was not made aware of the specific term of postrelease supervision imposed is not preserved for our review ( see People v. Lee, 80 A.D.3d 1072, 1073, 915 N.Y.S.2d 417 [2011], lv. denied 16 N.Y.3d 832, 833, 921 N.Y.S.2d 197, 946 N.E.2d 185 [2011] ).
ORDERED that the judgment is affirmed.
ROSE, J.P., LAHTINEN, KAVANAGH and GARRY, JJ., concur.