B People v. Wheeler

May 14, 2015
105535
Versions:128 A.D.3d 1177
8 N.Y.S.3d 736
2015 NY Slip Op 04169

Rose, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered October 10, 2012, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

Defendant was charged in a six-count indictment arising out of three separate sales of crack cocaine. In full satisfaction thereof, he pleaded guilty to criminal sale of a controlled substance in the third degree with the understanding that he would be sentenced as a prior felony offender to an eight-year prison term with three years of postrelease supervision. During the plea colloquy, County Court incorrectly informed defendant that he faced potential sentences of 15 years, rather than the correct maximum term of 12 years (see Penal Law §§ 220.16 [1]; 220.39 [1]; 119 AD3d 1236, 1237 [2014]; compare Penal Law § 70.70 [3] [b] [i] with Penal Law § 70.70 [4] [b] [i]). Defendant was thereafter sentenced pursuant to the terms of the plea agreement. Upon defendant’s initial appeal, we rejected his counsel’s Anders brief and assigned new counsel to address, at a minimum, County Court’s error in informing defendant of the incorrect maximum term of incarceration (119 AD3d at 1237).

On this appeal, defendant’s contention that his plea was not knowing, voluntary and intelligent because County Court erroneously stated his maximum potential terms of incarceration on the crimes charged is unpreserved for our review, as the record on appeal does not reflect that defendant made an appropriate postallocution motion (see People v Royce, 122 AD3d 1008, 1009 [2014]; People v Smith, 49 AD3d 1032, 1033 [2008], lv denied 10 NY3d 939 [2008]). Further, after reviewing the record, we decline to exercise our interest of justice jurisdiction in light of defendant’s extensive experience with the criminal justice system, the lack of any indication that he relied on the erroneous information in accepting the plea agreement and the lack of any other evidence that the plea was involuntary (see People v Smith, 49 AD3d at 1033; People v Robles, 5 AD3d 180, 180-181 [2004], lv denied 2 NY3d 805 [2004]; see also People v Ortiz, 69 AD3d 966, 967-968 [2010]).

Peters, P.J., Egan Jr. and Lynch, JJ., concur. Ordered that the judgment is affirmed.