| People v Terenzi |
| 2008 NY Slip Op 10068 [57 AD3d 1228] |
| December 24, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Anthony J. Terenzi,Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Thomas D. Jackson Jr. of counsel), forrespondent.
Carpinello, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered August 8, 2007, convicting defendant upon his plea of guilty of the crime of assault in thesecond degree.
Defendant was charged, by way of two felony complaints, with criminal possession of a weapon inthe third degree and robbery in the first degree stemming from allegations that he forcibly stole moneyand drugs from an acquaintance. Following an arraignment, a preliminary hearing at which defendantrepresented himself because he was unable to secure a specific attorney and an initial plea offer thatwas rejected,[FN*]a grand jury handed up a four-count [*2]indictment charging assault inthe second degree, robbery in the first and second degrees and criminal possession of a weapon in thefourth degree. Defendant eventually pleaded guilty to assault in the second degree in exchange for asentence of five years in prison and five years of postrelease supervision. Prior to sentencing, he movedto withdraw the plea, alleging that he understood the agreed-upon sentence to include only three yearsof postrelease supervision. This motion, however, was withdrawn and County Court sentenced him inaccordance with the negotiated plea. Defendant now appeals.
Defendant challenges the voluntariness of his plea on the ground that he was confused as to theduration of postrelease supervision. This contention, however, is unpreserved for this Court's reviewsince defendant withdrew his motion to withdraw the plea and failed to move to vacate the judgment ofconviction (see People v Brown, 10AD3d 801, 802 [2004], lv denied 3 NY3d 739 [2004]; People v Cook, 252AD2d 595, 595 [1998]; People v La Boy, 152 AD2d 866 [1989]). In any event, our reviewof the plea colloquy reveals full disclosure of the agreed-upon term of postrelease supervision and thatthe plea was entirely knowing, voluntary and intelligent.
Moreover, by pleading guilty, defendant forfeited the right to now argue that he was denied theright to counsel at the preliminary hearing (see e.g. People v Hansen, 95 NY2d 227, 230-233[2000]; People v Taylor, 65 NY2d 1, 5-6 [1985]; People v Fagan, 53 AD3d 983, 984 [2008]; People v Drake, 38 AD3d 1009, 1011[2007], lv denied 8 NY3d 984 [2007]; People v Harvey, 227 AD2d 972, 972-973[1996], lv denied 88 NY2d 1021 [1996]; People v Wheeler, 176 AD2d 1133[1991], lv denied 79 NY2d 924 [1992]). Defendant also argues that he was denied theeffective assistance of counsel because his former counsel failed to "challenge the legalities of [the]preliminary hearing" and failed to make a motion to either inspect the grand jury minutes and/or "dismissor reduce" the indictment. These claims likewise do not survive his guilty plea since they do not directlyinvolve the plea-bargaining process (see People v Petgen, 55 NY2d 529, 535 n 3 [1982]).
Defendant's remaining contentions have been reviewed and found to be unpersuasive.
Mercure, J.P., Rose, Kane and Malone Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Prior to presentment to the grandjury, defendant was offered a plea agreement whereby he would plead guilty to one count of assault inthe second degree as a second felony offender in exchange for a recommended sentence of five yearsin prison and three years of postrelease supervision. As it turns out, the offer was illegal in that the onlypermissible term of postrelease supervision was five years (see Penal Law § 70.45 [2]).