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People v. Feliciano

Supreme Court of New York, Third Department

July 11, 2013

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
EFRAIN J. FELICIANO, Appellant.

Calendar Date: May 28, 2013

Terry D. Horner, Poughkeepsie, for appellant.

D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Before: Rose, J.P., Stein, Spain and Garry, JJ.

MEMORANDUM AND ORDER

Rose, J.P.

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered October 14, 2011, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

In full satisfaction of a four-count indictment and other pending charges, defendant pleaded guilty to one count of criminal sale of a controlled substance in the third degree. Pursuant to the terms of the plea agreement, defendant was sentenced, as a second felony drug offender with a prior violent felony conviction, [1] to eight years in prison followed by three years of postrelease supervision, along with $100 in restitution.

Although defendant argues on appeal that County Court coerced him into pleading guilty by, among other things, making a misstatement concerning his sentence exposure and mentioning its need to "move cases quickly, " the absence of proof in the record before us that he moved to withdraw his guilty plea or vacate the judgment of conviction renders these issues unpreserved for appellate review (see People v Seuffert, 104 A.D.3d 1021, 1021 [2013]; People v Good, 83 A.D.3d 1124, 1125 [2011], lv denied 17 N.Y.3d 816 [2011]). Moreover, defendant did not make any statements in the course of the plea allocution that "called into question the voluntariness of his plea so as to trigger the exception to the preservation requirement" (People v Good, 83 A.D.3d at 1125; see People v Lopez, 71 N.Y.2d 662, 666 [1988]).

Defendant also asserts that he did not receive meaningful representation because, among other things, his counsel failed to object to County Court's misstatement concerning his sentencing status. He also alleges that counsel failed to obtain or review laboratory reports confirming that the cocaine he admitted selling was, in fact, a controlled substance. Nonetheless, even assuming, arguendo, that these "ineffective assistance of counsel claim[s] impact[] upon the voluntariness of [defendant's] plea..., this issue is — absent record evidence of an appropriate postallocution motion — unpreserved for our review" (People v Lazore, 102 A.D.3d 1017, 1017-1018 [2013]; see People v Walton, 101 A.D.3d 1489, 1490 [2012], lv denied 20 N.Y.3d 1105 [2013]; People v Newman, 99 A.D.3d 1107, 1108 [2012]). Were we to reach the issue, we would conclude that defendant received meaningful representation (see People v Bean, 102 A.D.3d 1062, 1063 [2013]).

Turning to defendant's various contentions alleging violations of CPL 400.21, we note that defendant's failure to raise before County Court his current argument that the predicate felony statement was facially insufficient renders this claim unpreserved for our review (see People v Kelly, 65 A.D.3d 886, 889 [2009], lv denied 13 N.Y.3d 860 [2009]; see also People v Walton, 101 A.D.3d at 1490; People v Evans 88 A.D.3d 1029, 1030 [2011], lvs denied 18 N.Y.3d 858 [2011]). In any event, any errors with respect to the content of the predicate statement were harmless given that all the appropriate information was set forth on the record (see People v Bouyea, 64 N.Y.2d 1140, 1142 [1985]). Nor did defendant object to the People's error in describing to the court the Penal Law section applicable to his predicate violent felony conviction. There is no dispute that, in 2001, defendant was convicted of criminal possession of a weapon in the third degree pursuant to Penal Law former § 265.02 (4), a class D violent felony [2]. However, in 2006, the Legislature repealed and "transferred that crime" to a different statute, namely, criminal possession of a weapon in the second degree pursuant to Penal Law § 265.03 (3) (William C. Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 265.00 at 413; see L 2006, ch 742, § 1). Even though the People erroneously presented the Penal Law § 265.03 (3) citation to the court, the correct information was available in defendant's rap sheet and there was no objection registered. Given these circumstances, including defendant's unequivocal admissions regarding his prior violent felony conviction, we cannot conclude that resentencing is required (see People v Bouyea, 64 N.Y.2d at 1142).

Finally, we have reviewed defendant's claim that his negotiated sentence is harsh and excessive and, considering his criminal history, find no extraordinary circumstances or an abuse of discretion (see People v Bean, 102 A.D.3d at 1063; People v Williams, 101 A.D.3d 1174, 1174 [2012]).

Stein, Spain and Garry, JJ., concur.

ORDERED that the judgment is affirmed.


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