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People v. Rogers

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


June 5, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JAMES S. ROGERS, ALSO KNOWN AS JIMMY JAZZ, DEFENDANT-APPELLANT.

Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), rendered June 14, 2007. The judgment convicted defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree.

PRESENT: SCUDDER, P.J., MARTOCHE, FAHEY, CARNI, AND PINE, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum

Defendant appeals from a judgment convicting him, upon his plea of guilty, of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]). We reject the contention of defendant that County Court did not give due consideration to his pro se motion to withdraw his plea. The determination whether to entertain a pro se motion of a defendant who is represented by counsel is solely within the court's discretion (see People v Rodriguez, 95 NY2d 497, 500; People v Minter, 295 AD2d 927, lv denied 98 NY2d 712), and we conclude that the court did not abuse its discretion in this case. We further reject defendant's contention that the bargained-for sentence is unduly harsh or severe. Finally, defendant failed to preserve for our review his contention that the sentence imposed constituted cruel and unusual punishment (see People v Reese, 31 AD3d 582, lv denied 7 NY3d 851) and, in any event, that contention lacks merit. "There are no exceptional circumstances warranting modification of the sentence, which was the statutory minimum and the result of a negotiated plea" (id. at 583).

20090605

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