Opinion
2013-04-18
The PEOPLE of the State of New York, Respondent, v. Davon WHITE, Defendant–Appellant.
Center for Appellate Litigation, New York (Robert S. Dean of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (David P. Johnson of counsel), for respondent.
Center for Appellate Litigation, New York (Robert S. Dean of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (David P. Johnson of counsel), for respondent.
TOM, J.P., SWEENY, SAXE, ROMÁN, FEINMAN, JJ.
Judgment, Supreme Court, Bronx County (Robert G. Seewald, J. at plea; John Collins, J. at sentencing), rendered March 18, 2011, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a term of three years, unanimously affirmed.
The sentencing court properly denied defendant's motion to withdraw his plea ( see generally People v. Frederick, 45 N.Y.2d 520, 410 N.Y.S.2d 555, 382 N.E.2d 1332 [1978] ). The motion was based entirely on postplea information about a testing chemist's misconduct, which allegedly undermined the People's ability to prove the identity of the drugs defendant sold. This information did not tend to establish defendant's innocence. Instead, it constituted impeachment material ( see People v. Holloway, 33 A.D.3d 442, 823 N.Y.S.2d 17 [1st Dept. 2006], lv. denied7 N.Y.3d 902, 826 N.Y.S.2d 611, 860 N.E.2d 73 [2006] ).
Furthermore, the People assured the court that they could have still established the identity of the drugs by way of several forms of untainted evidence. “[T]he nature and extent of the fact-finding procedures on such motions rest largely in the discretion of the court” ( People v. Fiumefreddo, 82 N.Y.2d 536, 544, 605 N.Y.S.2d 671, 626 N.E.2d 646 [1993] ). Accordingly, the sentencing court was not obligated to conduct a minitrial on the issue of the identity of the drugs.
Defendant made a valid waiver of his right to appeal ( see People v. Lopez, 6 N.Y.3d 248, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Regardless of whether defendant validly waived his right to appeal, we perceive no basis for reducing the sentence.