People v. Turner
811 N.Y.S.2d 232
N.Y. App. Div.
2006
Check Treatment
Spain, J.

Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered November 8, 2004, сonvicting defendant upon his plea of guilty of the crime of criminal possession of a cоntrolled substance in the fourth degree.

Defendant pleaded guilty to one count of criminal possession of a controlled substance in the fourth degree in satisfaction of an eight-count indictment, following the recovery of a quantity of cocaine from an apartment in which defendant was present. Defendant executed a waiver of his right to appeal and was sentenced as a second felony offender, in accordance with the plea agrеement, to a prison term of SVa to 7 years. Defendant now appeals.

Defendant’s claim that his guilty plea was not knowing, intelligent and voluntary is, of course, reviewable notwithstanding his valid ‍​‌‌​​​​‌​​​​​​​‌​​​​​​‌‌​‌‌​‌‌‌​​‌‌‌‌‌​‌‌‌​​‌​‌​‍appeal waiver, but was not preserved for our review by a motion to withdraw his plea or to vacate the judgment of conviction (see People v Nesbitt, 23 AD3d 836, 837 [2005]; People v Santalucia, 19 AD3d 806, 807 [2005], lv denied 5 NY3d 856 [2005]). Moreover, defendant makes no viable claims that his plea was other than voluntary. Instead, an examination of defendant’s contentions reflects that he is actually challenging the sufficiency of his plea allocution with regard to constructive possession (see Penal Law § 10.00 [8]; see also People v Ocasio, 265 AD2d 675, 676 [1999]). However, this issue was likewise not preserved by a motion, thereby “ depriving] County Court of the opportunity to address the alleged deficiencies and, if deemed necessary, tаke corrective measures” (People v Tumminia, 272 AD2d 634, 634 [2000], lv denied 95 NY2d 939 [2000]; see People v Lopez, 71 NY2d 662, 665-666 [1988]; People v *963Bolden, 287 AD2d 883, 883 [2001], lv denied 97 NY2d 654 [2001]). Furthermore, a challenge to the factual sufficiency of ‍​‌‌​​​​‌​​​​​​​‌​​​​​​‌‌​‌‌​‌‌‌​​‌‌‌‌‌​‌‌‌​​‌​‌​‍a plea allocution is foreclosed by defendant’s appeal waiver (see People v Nesbitt, supra; People v Tausinger, 21 AD3d 1181, 1182 [2005]; People v Bethea, 19 AD3d 813, 814 [2005]; People v Threatt, 16 AD3d 706, 707 [2005]).

In any event, the record reflects that defendant’s plea followed his codefendant’s guilty plea on related charges. The co-defendant was also present during the police raid and agreed to testify that defendant had been packaging the cocaine for sale prior to the police entry. During the plea colloquy, defendant admitted that prior to the entry by police, he had been in the living room where the cocaine was discovered, he knew thаt cocaine for sale was in that room and he had access to it and could have usеd it if he desired (although he denied being a user). Defendant also admitted that he had stayed there overnight.

While defendant claimed that the drugs were “not his to sell,” i.e., he denied that he owned them, ownеrship is not an element of this possessory crime to which he pleaded guilty (see Penal Law § 220.09 [1]; see also People v Sierra, 45 NY2d 56, 61 [1978]). Defendant admitted tо facts establishing his constructive possession of them, i.e., his exercise of “dominion ‍​‌‌​​​​‌​​​​​​​‌​​​​​​‌‌​‌‌​‌‌‌​​‌‌‌‌‌​‌‌‌​​‌​‌​‍or control” over the cocaine “by a sufficient level of control over the area in which the сontraband [was] found” (People v Manini, 79 NY2d 561, 573 [1992]; see People v Rodas, 238 AD2d 358, 359 [1997] [plea]; see also People v Banks, 14 AD3d 726, 727-728 [2005], lv denied 4 NY3d 851 [2005] [trial]; People v Elhadi, 304 AD2d 982, 983-984 [2003], lv denied 100 NY2d 580 [2003]; Penal Law § 10.00 [8]). Defendant’s admissions were sufficient and demonstrated substantially morе than his “mere presence” in the apartment (see People v Banks, supra at 727).

Contrary to defendant’s claims, although he initially dеnied possessing the drugs, upon further inquiry by County Court he unequivocally admitted facts constituting constructive possession and thereafter did not make statements which either cast doubt upon his guilt or raised concerns about the voluntariness of his plea or his understanding of the nature of the charge tо which he was pleading guilty, so as to require further inquiry by County Court (see People v Lopez, supra at 666; see also People v Seeber, 4 NY3d 780, 781 [2005]). Notably, defendant’s guilty plea neither requirеd that he recite ‍​‌‌​​​​‌​​​​​​​‌​​​​​​‌‌​‌‌​‌‌‌​​‌‌‌‌‌​‌‌‌​​‌​‌​‍every element of the crime nor a factual exposition for eаch element (see People v Seeber, supra at 781; People v Lopez, supra at 666 n 2; People v Threatt, supra at 707). Further, at an earlier proceeding, County Court *964had offered an explanation of the concept of constructivе possession to defendant and directed his counsel to explain it, which we assume was donе, and defendant had previously pleaded guilty in another matter to possession of a weapon under the theory of constructive possession.

Next, defendant’s conclusory claims thаt he was forced to enter a guilty plea due to trial counsel’s failure to preparе and investigate are reviewable to the extent that they impact upon the voluntariness оf his plea, but lack any record support (see People v Ford, 86 NY2d 397, 404 [1995]; People v Frierson, 21 AD3d 1211, 1212 [2005], lv denied 6 NY3d 753 [2005]). Trial counsel actively pursued discovery, made an omnibus motion seeking dismissal and other relief, ‍​‌‌​​​​‌​​​​​​​‌​​​​​​‌‌​‌‌​‌‌‌​​‌‌‌‌‌​‌‌‌​​‌​‌​‍and successfully argued to preclude significant aspects of defendant’s criminal history at the Sandoval hearing. Faced with the likelihood of a coоperating codefendant’s testimony against defendant and defendant’s exposure to persistent felony offender sentencing, trial counsel obtained a very favorable plea аgreement and we discern no support for defendant’s claims of ineffective assistance.

Finally, defendant’s challenge to the severity of the negotiated sentence is precluded by his comprehensive and valid waiver of appeal (see People v Clow, 10 AD3d 803, 804 [2004]).

Crew III, J.P., Mugglin, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed.