People v Gutierrez

2007 NY Slip Op 08309 [45 AD3d 971]

November 8, 2007

Appellate Division, Third Department

As corrected through Wednesday, January 16, 2008

The People of the State of New York, Respondent, v JohnGutierrez, Appellant.

—[*1]Craig S. Leeds, Albany, for appellant.

Stephen F. Lungen, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.

Peters, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered August 4, 2006, convicting defendant upon his plea of guilty of the crimes of criminalpossession of a controlled substance in the first degree, criminal possession of a weapon in thethird degree and conspiracy in the sixth degree.

In satisfaction of an eight-count indictment stemming from the seizure of a handgun andquantities of cocaine, marihuana and ecstacy from the residence of defendant and hiscodefendant, defendant pleaded guilty to the crimes of criminal possession of a controlledsubstance in the first degree and criminal possession of a weapon in the third degree agreeing thathis respective prison sentences would be 10 years with a term of postrelease supervision and21/3 to 6 years, and he waived his right to appeal. While in jail awaitingsentencing, defendant and his codefendant were caught attempting to smuggle contraband intothe jail and, at sentencing on the original two counts, defendant pleaded guilty to an additionalmisdemeanor count in satisfaction of charges arising from that incident and also consented to anincrease in the previously agreed-upon sentences for the original two counts. County Court thensentenced defendant to, among other things, concurrent terms of imprisonment of 13 years to befollowed by five years of postrelease supervision on the charge of criminal possession of acontrolled substance in the first degree, 21/3 to 7 years on the charge of criminalpossession of a weapon in the third degree and 30 days for the misdemeanor charge. Defendantnow appeals.[*2]

Initially, we note that, inasmuch as he has failed to moveto withdraw his plea or vacate the judgment of conviction, defendant's challenge to thevoluntariness of his plea is unpreserved for our review (see People v Phillips, 41 AD3d 969, 969-970 [2007]; People v Daniels, 16 AD3d 780,780 [2005]; People v Rich, 10AD3d 739, 740 [2004]). In any event, if we were to address defendant's contention wewould find it to be without merit. A review of the transcript of the plea allocution reveals thatdefendant was fully apprised of his rights and the ramifications of pleading guilty andaffirmatively communicated to County Court his understanding and desire to plead guilty. Thus,we are satisfied that defendant's plea was knowing, intelligent and voluntary (see People vDaniels, 16 AD3d at 780; People v Rich, 10 AD3d at 740). Furthermore, in light ofdefendant's express denial upon questioning by County Court that coercion, force or threatsplayed any part in his decision to plead guilty and that he declined an opportunity to speak at hissentencing hearing and made no attempt to withdraw his plea, his present assertion that he wascoerced is not supported in the record before us. Additionally, we conclude that, under thepresent circumstances, the vague, unsubstantiated letter concerning his codefendant submitted toCounty Court by a nonparty following the entry of defendant's plea did not trigger a duty on thepart of County Court to inquire further at defendant's sentencing into whether he was coerced (see People v Wagoner, 30 AD3d629, 630 [2006]; People v Rich, 10 AD3d at 740; compare People v Moore,244 AD2d 706, 706-707 [1997]).^[FN*]

Finally, defendant's contention that County Court erred in referring to the charge of criminalpossession of a weapon in the third degree as a class A felony is meritless. When read in context,it is clear that County Court properly treated the weapons charge as a class D felony, asdefendant's sentence of 21/3 to 7 years on that charge reflects (see PenalLaw § 70.00). As a result, defendant's claims of ineffective assistance of counsel and animproper sentence premised on this assertion are unavailing.

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

Footnote *: The letter was apparentlywritten by a member of the community in support of a lengthy sentence for defendant'scodefendant, but it contains, in passing, a claim that "[defendant] pleaded guilty out of fear of[his codefendant's] father, who has been paying for [defendant's] attorney." Importantly,defendant made no such assertion before County Court and makes no such assertion to thisCourt.