People v Austin
Appellate Division, Third Department, New York
July 21, 2016
2016 NY Slip Op 05595 | 141 AD3d 956
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 31, 2016
Susan Patnode, Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.
Mary E. Rain, District Attorney, Canton (Jonathan Jirik, Law Intern), for respondent.
Mulvey, J. Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered February 11, 2014, convicting defendant upon his plea of guilty of the crime of burglary in the third degree.
In August 2012, in satisfaction of various charges against him, defendant signed an appeal waiver in open court and pleaded guilty to the crime of burglary in the third degree. The plea agreement contemplated that defendant would enter into the judicial diversion program and that, if he failed to complete the program, he could face 31/2 to 7 years in prison. In November 2013, after multiple unsuccessful attempts at treatment, defendant was charged with violating the terms of the judicial diversion program contract and was terminated from the program after waiving his right to a hearing and admitting that he had violated those terms in numerous respects. County Court sentenced defendant as a second felony offender to a prison term of 3 to 6 years. Defendant now appeals.
We affirm. Initially, we reject defendant‘s contention that his plea was not knowing, voluntary and intelligent because County Court failed to explain a direct consequence of his plea—specifically, the “specific period” that he was required to participate in “substance abuse treatment” as part of judicial diversion program (see
Concerning defendant‘s challenge to the sentence imposed, we find that the appeal waiver was knowing, voluntary and intelligent (see People v Lopez, 6 NY3d 248, 256 [2006]), and, therefore, defendant is precluded from challenging his sentence as harsh and excessive (see People v Lopez, 6 NY3d at 256; People v Jackson, 128 AD3d 1279, 1280 [2015], lv denied 26 NY3d 930 [2015]; People v Mills, 85 AD3d 1448, 1448 [2011]; People v Sofia, 62 AD3d 1159, 1160 [2009]). As for defendant‘s ineffective assistance of counsel claim, even assuming such claim impacts upon the voluntariness of his plea and, hence, survives his valid waiver of appeal (see People v Clark, 135 AD3d 1239, 1240 [2016], lv denied 27 NY3d 995 [2016]; People v Buswell, 88 AD3d 1164, 1164 [2011]), there is no indication on this record that defendant made an appropriate postallocution motion. Accordingly, this issue is unpreserved for our review (see People v Smalls, 128 AD3d 1281, 1282 [2015], lv denied 27 NY3d 1006 [2016]; People v Broomfield, 128 AD3d 1271, 1272 [2015], lv denied 26 NY3d 1086 [2015]). Even if we were to consider defendant‘s contention that counsel‘s failure to request an enhancement hearing was error, we would find it to be without merit as County Court “was possessed of sufficient reliable and accurate information“—notably the results of a hearing held in jail that found defendant refused a drug test—so as “to warrant imposition of [an] enhanced sentence” (People v Waite, 119 AD3d 1086, 1088 [2014]; see People v Outley, 80 NY2d 702, 713 [1993]). To the extent that defendant‘s remaining arguments have not been specifically addressed, including his claim that he was not provided notice of the allegations in the violation petition to which he had already admitted, those claims have been examined and found to be lacking in merit.
Lahtinen, J.P., Egan Jr., Lynch and Devine, JJ., concur. Ordered that the judgment is affirmed.