Opinion
10-05-2017
The PEOPLE of the State of New York, Respondent, v. Jessee WELDON, Appellant.
Noreen McCarthy, Keene Valley, for appellant. Andrew J. Wylie, District Attorney, Plattsburgh (Timothy Blatchley of counsel), for respondent.
Noreen McCarthy, Keene Valley, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Timothy Blatchley of counsel), for respondent.
Before: PETERS, P.J., McCARTHY, ROSE, MULVEY and RUMSEY, JJ.
McCARTHY, J.In satisfaction of a four-count indictment, defendant pleaded guilty to two counts of the reduced charge of attempted promoting prison contraband in the first degree and waived his right to appeal. Pursuant to the terms of the plea agreement, defendant was to be sentenced, as a second felony offender, to concurrent prison terms of 1 ½ to 3 years. After defendant violated County Court's Parker admonishment by being arrested while awaiting sentencing, the plea agreement was renegotiated to the extent that defendant retained his right to appeal and would be sentenced, as a second felony offender, to concurrent prison terms of 2 to 4 years. County Court imposed the agreed-upon sentence, and defendant appeals.
Defendant contends that his plea was not knowingly, voluntarily and intelligently entered because he was unaware that withdrawal of his pending Huntley motion was a condition of the plea agreement. Contrary to defendant's contention, this was not a condition, but rather a consequence, of the plea. By pleading guilty while the motion was pending or before a hearing was held or a decision rendered, defendant forfeited his claims related to that motion (see People v. Carlton, 120 A.D.3d 1443, 1444, 991 N.Y.S.2d 806 [2014], lv. denied 25 N.Y.3d 1070, 12 N.Y.S.3d 621, 34 N.E.3d 372 [2015] ; People v. Straight, 106 A.D.3d 1190, 1191, 964 N.Y.S.2d 755 [2013] ; People v. Whitted, 12 A.D.3d 840, 841, 784 N.Y.S.2d 690 [2004], lv. denied 4 N.Y.3d 769, 792 N.Y.S.2d 12, 825 N.E.2d 144 [2005] ). "That [defendant] may have believed his plea would not result in such forfeiture is irrelevant, because, even if communicated to the court, a subjective belief cannot permit evasion of what otherwise would be the consequences of the plea" ( People v. Fernandez, 67 N.Y.2d 686, 688, 499 N.Y.S.2d 919, 490 N.E.2d 838 [1986] ). Furthermore, defendant's challenge to the knowing, voluntary and intelligent nature of the plea is unpreserved as the record reflects that he made no postallocution motion despite the opportunity to do so, and a review of the record does not reflect that the narrow exception to the preservation rule is applicable (see People v. Williams, 145 A.D.3d 1188, 1190–1191, 43 N.Y.S.3d 190 [2016], lv. denied 29 N.Y.3d 1002, 57 N.Y.S.3d 723, 80 N.E.3d 416 [2017] ). In any event, were we to consider the issue, we would find that County Court advised defendant of the consequences of his plea with regard to any motions, and the record does not otherwise demonstrate that his plea was not knowingly, voluntarily and intelligently entered.
Defendant's contention that he was not provided an opportunity to speak on his behalf at the time of sentencing, in violation of CPL 380.50, is not preserved as he failed to object at that time (see People v. Green, 54 N.Y.2d 878, 880, 444 N.Y.S.2d 908, 429 N.E.2d 415 [1981] ; People v. Cianfarani, 81 A.D.3d 998, 999, 916 N.Y.S.2d 650 [2011] ). In any event, were we to consider the issue, we would find it to be without merit as the record reflects that there was substantial compliance with that statute (see People v. McClain, 35 N.Y.2d 483, 491, 364 N.Y.S.2d 143, 323 N.E.2d 685 [1974] ). To the extent that defendant contends that he received ineffective assistance of counsel and that the sentence is harsh and excessive, we find such issues to be without merit.
ORDERED that the judgment is affirmed.
PETERS, P.J., ROSE, MULVEY and RUMSEY, JJ., concur.