| People v Mackie |
| 2019 NY Slip Op 53940 [177 AD3d 1192] |
| November 27, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Larry Mackie, Appellant. |
Lisa A. Burgess, Indian Lake, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Clinton County (Bruno, J.),rendered June 26, 2017, convicting defendant upon his plea of guilty of the crimes ofcriminal sale of a controlled substance in the third degree (four counts), criminalpossession of a controlled substance in the third degree (seven counts) and conspiracy inthe fourth degree (two counts).
In satisfaction of four indictments (Nos. 65A-I-161395, 66A-I-161397,8A-I-171506, 11-I-171511) charging defendant with 13 drug-related offenses, defendantpleaded guilty, as charged, to criminal sale of a controlled substance in the third degree(four counts), criminal possession of a controlled substance in the third degree (sevencounts) and conspiracy in the fourth degree (two counts). Thereafter, defendant wassentenced, as a second felony offender, to concurrent and consecutive prison terms, to befollowed by postrelease supervision, resulting in a prison sentence of 12 years.[FN*] Defendant appeals,seeking to reverse both of the conspiracy convictions and challenging his sentence asharsh and excessive.
Notwithstanding the People's concession that defendant's plea allocution to theconspiracy charges was factually insufficient, defendant's claim in this regard is notpreserved for our review, as the record does not reflect that he made an appropriatepostallocution motion that would have afforded County Court "the opportunity to addressthe perceived error and to take corrective measures, if needed" (People v Lopez,71 NY2d 662, 665-666 [1988]; see CPL 220.60 [3]; People v Small, 166 AD3d1237, 1238 [2018]; Peoplev McClain, 165 AD3d 1345, 1346 [2018]). Further, the narrow exception to thepreservation rule was not triggered here, as "defendant did not make any statementsduring his allocution that cast doubt upon his guilt or negated an element of the chargedcrime[s], and nothing on the face of the colloquy calls into question either thevoluntariness of defendant's plea or his capacity to enter into it" (People v Small,166 AD3d at 1238-1239 [internal quotation marks and citation omitted]; see People vLopez, 71 NY2d at 666; People v Reap, 163 AD3d 1287, 1288 [2018], lvdenied 32 NY3d 1128 [2018]; People v Blair, 140 AD3d 1478, 1479 [2016], lvdenied 28 NY3d 927 [2016]). Nevertheless, we exercise our interest of justicejurisdiction to take corrective action (see CPL 470.15 [3] [c]; [6] [a]) and reversedefendant's two conspiracy convictions (see People v Deleon, 149 AD3d 1273, 1273-1274 [2017],lv denied 29 NY3d 1077 [2017]).
"A person shall not be convicted of conspiracy unless an overt act is allegedand proved to have been committed by one of the conspirators in furtherance of theconspiracy" (Penal Law § 105.20 [emphasis added]; see People v Ramos, 19 NY3d417, 419-420 [2012]; People v Pichardo, 160 AD3d 1044, 1048 [2018], lvdenied 31 NY3d 1151 [2018]; People v Deleon, 149 AD3d at 1273). Here,the two conspiracy counts neither allege that an overt act was committed nor includefactual allegations describing such an act. There is no assertion that defendant took anyaction beyond agreeing "to engage in or cause the performance of a class B felony."Accordingly, defendant's convictions of conspiracy in the fourth degree under count 3 ofindictment No. 65A-I-161395 and count 2 of indictment No. 8A-I-171506 must bereversed and the sentences imposed thereon vacated. Given that these two conspiracycounts were jurisdictionally defective and not subject to amendment (see CPL200.50 [7] [a]; 200.70 [2] [a], [b]; People v Placido, 149 AD3d 1157, 1157-1158 [2017]), saidcounts are dismissed (see People v Pichardo, 160 AD3d at 1048; People vDeleon, 149 AD3d at 1273-1274; People v Grays, 121 AD3d 1178, 1179 [2014]; People v Pike, 63 AD3d1692, 1693 [2009], lv denied 13 NY3d 838 [2009]; cf. People v Walker, 135 AD3d1244, 1245 [2016]).
Finally, we are unpersuaded by defendant's contention that the sentences imposed forthe 11 remaining convictions were harsh and excessive. Initially, we note that defendant'ssentencing exposure was significantly greater than the 12 years that he received as aresult of his convictions, as a second felony offender, for 11 class B felonies, and thateight of the sentences were concurrent. Moreover, defendant has been previouslyincarcerated as a result of his criminal history involving, among other things,weapon-related offenses. Accordingly, we find no abuse of discretion or extraordinarycircumstances warranting a reduction of the sentences in the interest of justice (see People v Shortell, 155AD3d 1442, 1443, 1447 [2017], lv denied 31 NY3d 1087 [2018]; People v Johnson, 151 AD3d1462, 1466 [2017], lv denied 30 NY3d 1106 [2018]; People v Lee, 129 AD3d1295, 1300 [2015], lv denied 27 NY3d 1001 [2016]; People vSamuel, 284 AD2d 654, 655 [2001]).
Egan Jr., J.P., Lynch and Pritzker, JJ., concur. Ordered that the judgment is modified,as a matter of discretion in the interest of justice, by reversing defendant's convictions ofconspiracy in the fourth degree under count 3 of indictment No. 65A-I-161395 and count2 of indictment No. 8A-I-171506; said counts dismissed and the sentences imposedthereon vacated, with leave to the People to re-present any appropriate charge to a newgrand jury; and, as so modified, affirmed.
Footnote *:Defendant wassentenced to consecutive prison terms of three years for his conviction of criminal sale ofa controlled substance in the third degree under count 1 of indictment No. 66A-I-161397,four years for his conviction of criminal sale of a controlled substance in the third degreeunder count 1 of indictment No. 8A-I-171506, five years for his conviction of criminalpossession of a controlled substance in the third degree under count 1 of indictment No.11-I-171511 and to lesser concurrent prison terms on his remaining convictions.