Calendar Date: December 14, 2017
Danielle Neroni Reilly, Albany, for appellant.
M. Carney, District Attorney, Schenectady (Jennifer Uhl, Law
Intern), for respondent.
Before: McCarthy, J.P., Egan Jr., Devine, Mulvey and Rumsey,
MEMORANDUM AND ORDER
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.
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.
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 ; People v
Ramos, 135 A.D.3d 1234, 1234-1235 , lv
denied 28 N.Y.3d 935');">28 N.Y.3d 935 ). 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 ; People v
Lowe, 153 A.D.3d 1043, 1043 , lv denied
30 N.Y.3d 981');">30 N.Y.3d 981 ; People v Royce, 122 A.D.3d
1008, 1009 ).
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 , lv denied 25 N.Y.3d 1202');">25 N.Y.3d 1202
; People v Walton, 101 A.D.3d 1489, 1490
, lv denied 20 N.Y.3d 1105');">20 N.Y.3d 1105 ) [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 ;
People v Glynn, 72 A.D.3d 1351, 1352 , lv
denied 15 N.Y.3d 773');">15 N.Y.3d 773 ; People v Ellis, 53
A.D.3d 776, 777 ).
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
, lv denied 22 N.Y.3d 1089');">22 N.Y.3d 1089 ; People
v Caldwell, 80 A.D.3d 998, 998 , lv
denied 16 N.Y.3d 857');">16 N.Y.3d 857 ).
McCarthy, J.P., Egan Jr., Devine ...