People v. Rich

Jun 16, 2016
107103
Versions:140 A.D.3d 1407
34 N.Y.S.3d 250
2016 NY Slip Op 04747

Garry, J. Defendant pleaded guilty as charged to criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree. County Court thereafter sentenced him to eight years in prison, to be followed by 1 1/2 years of postrelease supervision, with the sentence to run concurrently to a sentence he was currently serving. Defendant appeals, and we affirm.

Initially, defendant‘s contention that his plea was not knowing, voluntary and intelligent and that he was denied the effective assistance of counsel were not preserved for our review by an appropriate postallocution motion (see People v Trombley, 115 AD3d 1114, 1114 [2014], lv denied 23 NY3d 1068 [2014]). As to the plea, we note that the narrow exception to the preservation requirement was triggered by defendant‘s initial denial during the plea colloquy that he had the intent to sell the narcotics, thus negating an element of criminal possession of a controlled substance in the third degree (see Penal Law § 220.16 [1]), and triggering a duty on the part of County Court to conduct further inquiry (see People v Lopez, 71 NY2d 662, 666 [1988]; People v Peterson, 124 AD3d 993, 994 [2015]; People v Morehouse, 109 AD3d 1022, 1022 [2013]). However, the record reveals that the court did then conduct sufficient further inquiry of defendant to confirm that he understood the nature of the charge and ensure the validity of the plea, and defendant thereafter admitted to having the requisite intent to sell. “[A]s defendant failed to express any dissatisfaction with the court‘s remedial action in this regard, defendant has waived any further challenge to his allocution” (People v English, 100 AD3d 1147, 1148 [2012]; see People v Karolys, 85 AD3d 1213 [2011], lv denied 17 NY3d 818 [2011]). Accordingly, we find that the plea was knowing, voluntary and intelligent (see People v Lopez, 71 NY2d at 667-668; People v Howard, 119 AD3d 1090, 1090 [2014], lv denied 24 NY3d 961 [2014]).

Finally, as to defendant‘s claim that the sentence is harsh and excessive, the record reveals no abuse of discretion or extraordinary circumstances warranting a reduction of the sentence (see People v Harold, 123 AD3d 1237, 1238 [2014]; People v Terry, 122 AD3d 955, 956 [2014]).

Peters, P.J., Lahtinen, Clark and Mulvey, JJ., concur.

Ordered that the judgment is affirmed.