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People v. Pittman

Supreme Court of New York, Third Department

January 18, 2018

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
DARRYL PITTMAN, Appellant.

          Calendar Date: December 14, 2017

          Danielle Neroni Reilly, Albany, for appellant.

          Robert M. Carney, District Attorney, Schenectady (Jennifer Uhl, Law Intern), for respondent.

          Before: McCarthy, J.P., Egan Jr., Devine, Mulvey and Rumsey, JJ.

          MEMORANDUM AND ORDER

          Rumsey, J.

         Appeal from a judgment of the Supreme Court (Coccoma, J.), rendered August 18, 2015 in Schenectady County, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.

         In satisfaction of a two-count indictment and other pending charges, defendant pleaded guilty to the reduced charge of attempted promoting prison contraband in the first degree and waived his right to appeal. Supreme Court sentenced defendant as a second felony offender, in accordance with the terms of the plea agreement, to a prison term of 1½ to 3 years, to run consecutively to the term he was currently serving. Defendant appeals.

         We affirm. Although defendant's unchallenged waiver of the right to appeal does not preclude his contention that his plea was not voluntary, it is nevertheless unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion (see People v Hopper, 153 A.D.3d 1045, 1046 [2017]; People v Ramos, 135 A.D.3d 1234, 1234-1235 [2016], lv denied 28 N.Y.3d 935');">28 N.Y.3d 935 [2016]). Furthermore, defendant made no statements during the plea colloquy that cast doubt on the voluntariness of the plea or triggered the narrow exception to the preservation requirement (see People v White, 153 A.D.3d 1041, 1041-1042 [2017]; People v Lowe, 153 A.D.3d 1043, 1043 [2017], lv denied 30 N.Y.3d 981');">30 N.Y.3d 981 [2017]; People v Royce, 122 A.D.3d 1008, 1009 [2014]).

         Defendant's further contention that he was improperly sentenced as a second felony offender also is unpreserved for our review given that he did not object to the second felony offender statement at sentencing (see People v Hummel, 127 A.D.3d 1506, 1507 [2015], lv denied 25 N.Y.3d 1202');">25 N.Y.3d 1202 [2015]; People v Walton, 101 A.D.3d 1489, 1490 [2012], lv denied 20 N.Y.3d 1105');">20 N.Y.3d 1105 [2013]) [26-28]. In any event, defendant pleaded guilty with the understanding that he would be sentenced as a second felony offender, a second felony offender statement was provided to defendant prior to sentencing, which defense counsel acknowledged that he reviewed with defendant in detail, and defendant declined the opportunity to controvert any aspect of the prior conviction set forth in the second felony offender statement. Notwithstanding some misstatements at sentencing regarding the dates of the prior felony offense, if the issue had been preserved, we would find that there was substantial compliance with CPL 400.21 (3) so as to give defendant adequate notice and an opportunity to contest the prior felony conviction, and, under the circumstances, that defendant was properly sentenced as a second felony offender (see People v Smith, 89 A.D.3d 1328, 1329 [2011]; People v Glynn, 72 A.D.3d 1351, 1352 [2010], lv denied 15 N.Y.3d 773');">15 N.Y.3d 773 [2010]; People v Ellis, 53 A.D.3d 776, 777 [2008]).

         To the extent that defendant's ineffective assistance of counsel claim survives his unchallenged waiver of the right to appeal, it too is unpreserved for our review inasmuch as the record does not reflect that defendant moved to withdraw his plea (see People v Osgood, 111 A.D.3d 1029, 1030 [2013], lv denied 22 N.Y.3d 1089');">22 N.Y.3d 1089 [2014]; People v Caldwell, 80 A.D.3d 998, 998 [2011], lv denied 16 N.Y.3d 857');">16 N.Y.3d 857 [2011]).

          McCarthy, J.P., Egan Jr., Devine ...


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