People v. GamblePeople v. Gamble
Appeals (1) from a judgment of thе County Court of Schenectady County (Hogan, J.), rendered March 29, 2018, convicting defendant upon his plea of guilty of the crime of criminal sale of а controlled substance in the third degree, and (2) from a judgment of said court, rendered July 26, 2019, which resentenced defendant.
Defendant was charged by indiсtment with criminal sale of a controlled substance in the third degree (three counts) and criminal possession of a controlled substance in thе third degree (three counts) stemming from the sale of heroin on three occasions. In satisfaction of those charges, defendant pleaded guilty to one count of criminal sale of a controlled substance in the third degree in exchange for a promised prison sentence of either five or six years to be followed by three years of postrelease supervision (hereinafter PRS) and executed a waiver оf appeal. Consistent with the plea agreement, County Court imposed a prison sentence of six years to be followed by three years of PRS, to be served concurrently with a four-year prison sentence recently imposed in Clinton County also for the sale of a controlled substance.1 Defendant appeals from that judgment of conviction. After being advised that the maximum period of PRS for this offense as a first time felony offender was two years, County Court resentenced defendant to six years in prison to be followed by two years of PRS, again to run concurrently with the Clinton County sentence. Defendant also appeals from the judgment rendered upon resentencing.
We affirm.2 Initially, we agree with defendant that the record fails to demonstrate that his waiver of appeal was knowing, voluntary and intelligent (see People v Thomas, 34 NY3d 545, 563 [2019]; People v Lopez, 6 NY3d 248, 256 [2006]). “[I]n determining whether the record demonstrates that a dеfendant understood an appeal waiver‘s consequences, proper considerations include the defendant‘s consultation with сounsel and on-the-record acknowledgments of understanding, a written appeal waiver that supplements or clarifies the court‘s oral advice and the defendant‘s experience with the criminal justice system” (People v Thomas, 34 NY3d at 560; see People v Sanders, 25 NY3d 337, 341-342 [2015]). “[O]f paramount importance is the trial court‘s responsibility to ensure that each defendant‘s full appreciation of the consequences and understanding of the terms and conditions of the plea and аppeal waiver are apparent on the face of the record” (People v Thomas, 34 NY3d at 560 [internal quotation marks and citation omitted]; see People v Seaberg, 74 NY2d 1, 11 [1989]).
During a limited oral colloquy, County Court merely advised defendаnt that pleading defendants ordinarily have a right to appeal to a higher court but, as part of the plea agreement, he was being rеquired to waive his right to appeal. Although defendant was afforded time to review the written waiver of appeal with counsel and signed it, indicating that he had
Defendant‘s challenge to the voluntariness of his plea is unpresеrved for our review absent evidence of an appropriate postallocution motion, despite ample time to make such a motion prior to sentencing and resentencing (see People v Williams, 27 NY3d 212, 214, 219-221 [2016]; People v Conceicao, 26 NY3d 375, 381 [2015]; People v Edwards, 181 AD3d 1054, 1055 [2020], lvs denied 35 NY3d 1026, 1029 [2020]; see also
Defendant‘s claims that he received the ineffective assistance of counsel, to the extent that they concern matters on the record, are unpreserved, as defendant never moved to withdraw his guilty plea prior to sentencing or resentencing (see People v Sydlosky, 181 AD3d 1094, 1095 [2020]; People v Shabazz, 174 AD3d 1223, 1225 [2019]). Moreover, counsel‘s
Given that defendant was resentenced in 2019 to the correct period of PRS, superseding the 2018 sentence,3 defendant‘s clаims addressed to the 2018 sentence are moot (see People v Clayton, 38 AD3d 1131, 1131-1132 [2007], lv denied 9 NY3d 841 [2007]). As for defendant‘s claim that the resentence imposed is harsh and excessive, we discern nо extraordinary circumstances or abuse of discretion warranting a modification thereof, particularly given that the plea agreement resolved charges from multiple drug sales and the sentence was imposed concurrently with a sentence imposed on another drug sаle conviction (see People v Latifi, 171 AD3d 1351, 1351 [2019]).
Lynch, J.P., Mulvey, Pritzker and Colangelo, JJ., concur.
ORDERED that the judgments are affirmed.