| People v Alvarado |
| 2011 NY Slip Op 01685 [82 AD3d 458] |
| March 8, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Antonio Alvarado, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Eleanor J. Ostrow of counsel), forrespondent.
Judgment, Supreme Court, New York County (Roger S. Hayes, J.), rendered October 12,2007, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance inthe fourth degree, and sentencing him, as a second felony drug offender, to a term of five years,affirmed.
Since defendant's plea withdrawal application was made on different grounds from thoseasserted on appeal, his claim that the plea was rendered involuntary by the court's allegedlyinaccurate description of defendant's sentencing exposure is unpreserved (see People v Cerveira, 6 AD3d294 [2004], lv denied 3 NY3d 704 [2004]), and we decline to review it in theinterest of justice. Furthermore, defendant did not make a CPL 440.10 motion, and to the extenthis argument raises issues concerning the advice provided by counsel, it is unreviewable on thepresent, unexpanded record. As an alternative holding, we find that the record, including thetranscript of a proceeding held one week before the plea, establishes that defendant received allthe sentencing information he needed in order to make an intelligent choice among the availablecourses of action (see People v Ford, 86 NY2d 397, 403 [1995]).
Defendant's valid waiver of his right to appeal forecloses review of his claim that his secondfelony drug offender adjudication was procedurally defective (see People v Callahan, 80NY2d 273, 281 [1992]; see also People v Samms, 95 NY2d 52, 56-58 [2000]). Asidefrom the waiver, this claim is unpreserved and we decline to review it in the interest of justice.As an alternative holding, we also reject it on the merits. Concur—Tom, J.P., Friedman,Acosta and RomÁn, JJ.
McGuire, J., concurs in a separate memorandum as follows: Defendant got precisely thesentence for which he bargained. But his first claim is that once the terms of the plea bargainchanged during the plea proceeding so that he no longer was required to admit to having beenconvicted previously of a violent felony offense and instead was required only to admit to havingbeen convicted previously of a felony, the court was obligated to [*2]inform him of the sentencing range applicable to a class C drugfelony committed by such a second felony offender (the "new sentencing range"). Although theplea bargain permitted defendant to avoid the greater sentences that could have been imposed ifhe was convicted after trial of the class B felony charged in the indictment (he was fully andaccurately informed about all the possible sentences that could be imposed following aconviction for the class B felony), he maintains that the court should have informed him of thenew sentencing range. In his brief, defendant does not explain how this range (rather than theranges applicable to the class B felony with which he was charged, the range applicable to apersistent felony offender and the specific sentence to which he agreed), could be relevant to hisdecision to plead guilty.[FN*]Nonetheless, defendant claims that his guilty plea was not knowingly, voluntarily andintelligently entered because of the court's failure so to inform him; he likens the new sentencingrange to the direct consequences of a plea about which a court must inform a defendant (see People v Catu, 4 NY3d 242[2005]). Moreover, defendant also argues that he was not required to move to withdraw his pleaon this ground.
Defendant does not ask that we grant the only relief that is appropriate upon sustaining aclaim that a guilty plea was not knowingly, voluntarily and intelligently entered—vacaturof the plea (People v Hill, 9 NY3d189, 191 [2007], cert denied 553 US 1048 [2008]). Rather, he asks only that weremand for further proceedings to determine whether he wishes to withdraw his plea. Given thatvacatur of the plea would expose defendant anew to the greater sentences his guilty plea avoided,it certainly is understandable that he does not ask us to vacate it. In essence, he is asking us todeclare that he has the right to demand that his plea be vacated at a future date if he is soinclined. But because defendant might not ask the trial court to vacate the plea, the determinationhe would have us make "would be merely advisory since it can have no immediate effect andmay never resolve anything" (New York Pub. Interest Research Group v Carey, 42 NY2d527, 531 [1977]; see also Hirschfeld vHogan, 60 AD3d 728, 729 [2009], lv denied 14 NY3d 706 [2010] [declarationthat both legal services provider and voluntary patient at mental health facility have the right torequest the patient's release "constituted an impermissible advisory opinion, as it will have noimmediate effect and may never resolve any actual dispute or controversy"]). At oral argument,defendant's attorney argued that defendant could not intelligently decide whether to ask that theplea be vacated because he does not know whether this Court will rule in his favor on this claimor on the third claim he raises (that we should vacate the sentence and remand for a newsentencing proceeding because he was not given an opportunity to contest the allegations of thesecond felony offender statement). However difficult the decision may be, defendant either doesor does not want his plea back; the possibility that he might prevail on his claim of entitlement toa remand for a new sentencing proceeding does not prevent him from making that decision. Inany event, we are not permitted to issue advisory opinions (New York Pub. Interest ResearchGroup, 42 NY2d at 529-530).[*3]
Defendant's second claim is that his attorney's failure tocorrect the court's "error" and inform him about the new sentencing range constituted a denial ofhis constitutional right to the effective assistance of counsel which rendered the plea unknowing.As defendant asks only that we remand for him to determine whether to ask that his plea bevacated, this claim suffers from the same fatal infirmity as the first claim.
Defendant's third claim is that he is entitled to a new sentencing proceeding because he wasnot arraigned and thus was deprived of an opportunity to controvert the second felony offenderstatement. At the plea proceeding, the court made clear that the plea bargain was contingent onan admission by defendant that he was a nonviolent felony offender, and defendant said heunderstood. At sentencing, which occurred nearly a year later, defendant was not arraigned on thesecond felony offender statement the People had filed shortly after the plea proceeding alleginghe had been convicted on December 12, 1999 of criminal sale of a controlled substance in thefifth degree. The court stated, however, that defendant was "found to be a predicate felon."
Footnote *: At oral argument, defendantargued that informing him about the new sentencing range was necessary because defendants"sometimes get more than the promised sentence." As defendant did not get more than thepromised sentence and a defendant who did would have the right to get his plea back on request,it is not obvious why informing him about the new sentencing range was essential.