People v. Henderson

Nov 26, 1996
Versions:233 A.D.2d 253
650 N.Y.S.2d 640
1996 N.Y. App. Div. LEXIS 12156

Judgment, Supreme Court, Bronx County (George Covington, J.), rendered June 30, 1994, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 7 to 14 years, unanimously affirmed.

Defendant’s claim that his unawareness of the robing room Sandoval hearing and ruling rendered his plea not voluntary, knowing and intelligent because, had he been made aware, he would have proceeded to trial and, in the event of a guilty verdict, exploited the court’s error in conducting the hearing *254in his absence, is without merit (cf., Lockhart v Fretwell, 506 US 364, 370). By pleading guilty, defendant agreed to relinquish certain constitutional rights, among them being the right to confront witness and the right to a jury trial, and also the right to appeal. While a guilty plea does not forfeit certain fundamental rights and jurisdictional issues, the right to be present at a Sandoval hearing is not included as a fundamental constitutional right. In fact, the Court of Appeals has classified the right as a statutory right (see, People v Favor, 82 NY2d 254) and as such it does not survive a plea of guilty. Defendant’s claim that his sentence is excessive was waived by his waiver of the right to appeal (People v Cole, 199 AD2d 60, lv denied 83 NY2d 803), and, in any event, we perceive no abuse of sentencing discretion. Concur—Murphy, P. J., Ross, Tom, Mazzarelli and Andrias, JJ.