| People v Thomas |
| 2019 NY Slip Op 06542 [175 AD3d 1614] |
| September 12, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Sheldon Thomas, Appellant. |
Aaron A. Louridas, Delmar, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Eliese R. Herzl-Betz of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Chemung County (Rich Jr., J.),rendered October 28, 2016, convicting defendant upon his plea of guilty of the crime ofattempted assault in the second degree.
Defendant was charged by indictment with assault in the second degree and promoting prisoncontraband in the first degree after he assaulted another inmate with a sharpened metal rod andcaused injuries to a correction officer who intervened. Defendant thereafter pleaded guilty to thereduced charge of attempted assault in the second degree in satisfaction of the indictment. Asagreed, County Court sentenced defendant to a prison term of 1
Defendant argues that his guilty plea was not knowing, voluntary and intelligent on thepremise that there was confusion during the plea allocution. However, County Court promptlycorrected any misstatements regarding the terms of the plea agreement, and defendant did notpreserve this claim by moving to withdraw his guilty plea on this ground prior to sentencing,despite ample opportunity to do so (see CPL 220.60 [3]; People v Williams, 27 NY3d 212,214, 219-223 [2016]; People vDuggins, 161 AD3d 1445, 1446 [2018], lv denied 32 NY3d 937 [2018]; compare People v Conceicao, 26 NY3d375, 382 [2015]). Moreover, the record does not reflect any material deficiency in the pleaallocution, and defendant did not make any statements that negated his guilt or called intoquestion the voluntariness of his plea so as to trigger the court's duty of further inquiry (see People v Pastor, 28 NY3d1089, 1091 [2016]; People v Williams, 27 NY3d at 219-220). In any event, therecord reveals that defendant indicated that he had adequate time to discuss the plea agreementwith counsel and, "thereafter, freely elected to forgo the rights to which he was entitled and made'a knowing, voluntary and intelligent choice to plead guilty among alternative courses ofaction' " (People v Miller,162 AD3d 1231, 1233 [2018] [brackets omitted], lv denied 32 NY3d 939 [2018],quoting People v Conceicao, 26 NY3d at 382).
Contrary to defendant's claim regarding predicate sentencing, County Court made clear thatthe plea agreement required that he be sentenced as a second felony offender, and defendantagreed to that condition. Although defendant initially asserted that his predicate convictions werewrongful, he conceded that he had exhausted all legal avenues to challenge those convictionsother than a habeas corpus petition.[FN*] The court made clear that defendant could seekhabeas corpus relief related to his predicate convictions in the proper forum, that the court had noauthority over the predicate convictions and that, should those convictions be overturned, hecould apply for resentencing on this conviction as a first felony offender. After being informed ofthe right to a hearing to challenge the predicate convictions (see CPL400.21)—which the court advised would be limited to his sentencing status here andwould not affect the validity of his prior convictions—defendant accepted the terms of theplea agreement, pleaded guilty and admitted the noticed predicate conviction. The court "was notobligated to expressly advise defendant of his right to contest the constitutionality of the priorconviction[s]" (People v Melton,136 AD3d 1069, 1070 [2016] [internal quotation marks and citations omitted], lvdenied 27 NY3d 1002 [2016]). As defendant did not thereafter request a hearing or object tobeing sentenced as a second felony offender, the court properly sentenced him as a second felonyoffender without a hearing (see People vHenry, 166 AD3d 1213, 1215 [2018], lv denied 33 NY3d 949 [2019]; People v Quinones, 162 AD3d1402, 1403 [2018]; People vRice, 162 AD3d 1244, 1247 [2018], lv denied 32 NY3d 940 [2018]). Given thatthe record as a whole affirmatively establishes that defendant understood and accepted the termsof the plea agreement, including predicate sentencing, his guilty plea will not be disturbed(see People v Conceicao, 26 NY3d at 383).
Egan Jr., Clark, Mulvey and Pritzker, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:Defendant's predicateconvictions for murder in the second degree and other crimes were affirmed on direct appeal (People v Thomas, 65 AD3d 1170[2009], lv denied 13 NY3d 942 [2010]), and his application for writ of error coram nobis(People v Thomas, 79 AD3d1153 [2010], lv denied 17 NY3d 802 [2011]) and motion to vacate the judgment (People v Thomas, 131 AD3d 551[2015], lv denied 26 NY3d 1112 [2016]) were denied. Subsequent to sentencing here,defendant's application for a writ of habeas corpus in connection with his predicate convictionswas denied (Thomas v State of N.Y. Dept. of Corr., 2017 WL 5891778, 2017 US DistLEXIS 199481 [US Dist Ct, ED NY, 11-cv-01119 (AMD), Donnelly, J., Nov. 28, 2017],appeal dismissed 2018 WL 3031136 [2d Cir, May 1, 2018, No. 17-4056]).