| People v Bucknor |
| 2014 NY Slip Op 02625 [116 AD3d 1233] |
| April 17, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vAnthony Bucknor, Also Known as Dewan, Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, New York City (Hannah Stith Long ofcounsel), for respondent.
Stein, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered October 6, 2011, convicting defendant upon his plea of guilty of the crime ofcriminal sale of a controlled substance in the second degree.
As the result of an investigation into narcotics trafficking by the Attorney General'sOrganized Crime Task Force, defendant and 36 codefendants were named in a 278-countsealed indictment which, among other things, charged defendant with conspiracy in thesecond degree and 24 drug felonies. In satisfaction of that indictment, defendant pleadedguilty to one count of criminal sale of a controlled substance in the second degree andwaived the right to appeal his conviction and sentence. Pursuant to the terms of the pleaagreement, defendant, a second felony offender, was offered a sentence of no more than10 years in prison, upon the condition that, among other things, he "cooperat[e]" with theprosecution. Prior to sentencing, the People informed County Court that defendant hadviolated the plea agreement by refusing to speak with the prosecution. Consequently, thecourt imposed an enhanced sentence of 14 years in prison and five years of postreleasesupervision. Defendant now appeals and we affirm.
Initially, defendant challenges County Court's imposition of an enhanced sentence,claiming that the nature of defendant's obligation to cooperate was not sufficientlyclarified. [*2]Although such argument survives hisappeal waiver, inasmuch as defendant did not object to the enhanced sentence on thatbasis and the record does not indicate that he made an appropriate postallocution motion,this claim is not preserved for our review (see People v Stanley, 100 AD3d 1152, 1152-1153 [2012];People v Gabbidon, 96AD3d 1235, 1236 [2012]). In any event, while the cooperation component of theplea agreement was not described in detail, it clearly obligated defendant to, at the veryleast, speak to the prosecution, which he flatly refused to do. Inasmuch as defendantviolated any reasonable interpretation of the cooperation agreement, we decline to takecorrective action in the interest of justice (see People v Fleming, 50 AD3d 1390, 1391 [2008];People v James, 251 AD2d 813, 815 [1998]; compare People v Stanley,100 AD3d at 1153).
Defendant's related claim that his trial counsel's failure to properly advise him of thefull implications of the cooperation agreement deprived him of the effective assistance ofcounsel—which also survives the appeal waiver because it implicates thevoluntariness of his plea—is likewise unpreserved (see People v Lohnes, 112AD3d 1148, 1150 [2013]; People v Morey, 110 AD3d 1378, 1379-1380 [2013]; People v Youngblood, 107AD3d 1159, 1160 [2013], lv denied 21 NY3d 1078 [2013]) and does notmerit the exercise of our interest of justice jurisdiction. Moreover, to the extent that it isproperly before us, we are unpersuaded by defendant's argument that his counsel wasineffective by failing to request a hearing on the issue of his compliance with thecooperation agreement.
Finally, we reject defendant's assertion that the enhanced sentence is harsh andexcessive.[FN*]Given defendant's failure to comply with the plea agreement, coupled with his lengthycriminal record, we find neither an abuse of discretion nor extraordinary circumstancesjustifying a reduction of the sentence in the interest of justice (see People v Paneto, 112AD3d 1230, 1231 [2013]; People v Jordan, 111 AD3d 970, 971 [2013], lvdenied 22 NY3d 1088 [2014]).
Lahtinen, J.P., Garry and Rose, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Inasmuch as defendantwas not advised of the maximum potential sentence, defendant's appeal waiver does notforeclose this claim (see Peoplev Edie, 100 AD3d 1262, 1262 [2012]; compare People v Thomas, 81 AD3d 997, 998 [2011],lv denied 16 NY3d 900 [2011]).