| People v Sumter |
| 2018 NY Slip Op 00354 [157 AD3d 1125] |
| January 18, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v ThomasSumter, Appellant. |
Erin C. Morigerato, Albany, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
McCarthy, J.P. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered May 27, 2015, which revoked defendant's probation and imposed a sentence ofimprisonment.
In 2013, defendant pleaded guilty to attempted criminal sale of a controlled substance in thethird degree and waived the right to appeal. He was sentenced to five years of probation, theterms of which included, among other things, that he successfully complete the Albany Countydrug court program. County Court explained that, under the plea agreement, if defendant failed tocomplete the program or otherwise violated a condition of probation, his probation would berevoked and he would be sentenced, as a second felony drug offender, to a prison term of no lessthan seven years or more than eight years, with three years of postrelease supervision. In 2015,defendant pleaded guilty to violating the terms of his probation by, among other things, beingarrested and failing to complete the drug court program, and he waived the right to appeal.County Court revoked his probation and sentenced him, as a second felony drug offender, toseven years in prison, to be followed by three years of postrelease supervision. Defendantappeals.
We reject defendant's contention that his waiver of the right to appeal was invalid (see People v Bartlett, 148 AD3d1468, 1469 [2017]; People vDolberry, 147 AD3d 1149, 1150 [2017], lv denied 29 NY3d 1078 [2017]).Defendant's contention that his guilty plea to the probation violation was not knowing, intelligentand voluntary survives his appeal waiver but is [*2]unpreservedfor our review inasmuch as the record does not reflect that he made an appropriate postallocutionmotion (see People v Woodard, 139AD3d 1238, 1238 [2016], lv denied 28 NY3d 939 [2016]; People v Secore, 102 AD3d 1057,1058 [2013], lv denied 21 NY3d 1019 [2013]).[FN*] Moreover, the exception to the preservationrule is inapplicable here as defendant did not make any statements that were inconsistent with hisguilt or cast doubt on the voluntariness of his plea (see People v Jones, 139 AD3d 1237, 1237 [2016], lv denied28 NY3d 932 [2016]; People vMcGregor, 119 AD3d 1235, 1236 [2014], lv denied 25 NY3d 991 [2015]).Similarly, to the extent that defendant's ineffective assistance of counsel claims implicate thevoluntariness of his plea, such claims survive his valid appeal waiver but are not preserved forour review absent an appropriate postallocution motion (see People v Dubois, 150 AD3d 1562, 1563-1564 [2017]; People v Islam, 134 AD3d 1348,1349 [2015]).
Defendant also contends that his federal drug conspiracy conviction does not qualify as apredicate New York felony and, therefore, it cannot serve as a basis for his second felony drugoffender adjudication. Although this claim is being raised for the first time on appeal, we findthat the claim "falls within the narrow exception to our preservation rule permitting appellatereview when a sentence's illegality is readily discernible from the . . . record" (People v Santiago, 22 NY3d 900,903 [2013]; see People v Samms, 95 NY2d 52, 55-56 [2000]; People v Martinez, 130 AD3d1087, 1088 [2015], lv denied 26 NY3d 1010 [2015]). In the special informationcharging a predicate offense, the People alleged that defendant was previously convicted in theUS District Court for the Northern District of New York of conspiracy to distribute marihuana(21 USC §§ 841, 846). However, the Court of Appeals has determined that,"under New York's 'strict equivalency' standard for convictions rendered in other jurisdictions, afederal conviction for conspiracy to commit a drug crime may not serve as a predicate felony forsentencing purposes" (People vRamos, 19 NY3d 417, 418 [2012]). We therefore vacate the sentence and remit thematter to County Court for resentencing (see People v Parker, 121 AD3d 1190, 1191 [2014]).
Egan Jr., Devine, Mulvey and Rumsey, JJ., concur. Ordered that the judgment is modified,on the law, by vacating the sentence imposed; matter remitted to the County Court of AlbanyCounty for resentencing; and, as so modified, affirmed.
Footnote *:To the extent that defendant alsochallenges his guilty plea to attempted criminal sale of a controlled substance in the third degree,those arguments are not before us inasmuch as he did not appeal from that judgment (see People v Brodsky, 16 AD3d842, 843 [2005]).