| People v Nelson |
| 2007 NY Slip Op 09618 [46 AD3d 932] |
| December 6, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v David Nelson,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), forrespondent.
Peters, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered August 3, 2006, convicting defendant upon his plea of guilty of two counts of the crimeof burglary in the second degree.
Indicted on three counts of burglary in the second degree and one count of petit larceny,defendant was offered a plea to one felony count with a sentence of no more than 15 years. Afterhe rejected the offer, a suppression hearing was held. Before a decision was rendered, defendantwas indicted on another count of burglary in the second degree. A plea bargain was reachedwhereby defendant was to plead guilty to two counts of burglary in the second degree insatisfaction of all outstanding charges. When accepting the plea, County Court meticulouslyexplained to defendant that he would receive a determinate prison term of between 8½ to10 years on the first count and between 8½ to 9 years on the second count, with thesentences to run consecutively, and that a five-year period of postrelease supervision would beimposed. Defendant agreed to those terms and waived his right to appeal.
Following the entry of his plea, but before sentencing, defendant obtained new counsel whoproffered a motion to withdraw the plea, alleging that defendant misunderstood the meaning ofthe word "consecutively," thinking that his sentences would run concurrently. After inquiry byCounty Court, on the record with both counsel present, defendant's motion was denied without a[*2]formal hearing and he was thereafter sentenced to consecutiveprison terms of 9½ years on the first count and nine years on the second count, with twofive-year postrelease supervision terms. Defendant appeals and we affirm.
We find no deficiency in the plea colloquy. Defendant's unequivocal responses to CountyCourt's questioning did not negate any element of the crimes (see People v Cabezas, 307AD2d 594, 595 [2003], lv denied 100 NY2d 618 [2003]) and County Court fulfilled itsobligation to specifically advise defendant of the rights he was waiving, including his right to atrial and his right to a decision on the issues raised in the suppression hearing. Moreover,defendant was extensively questioned regarding an intoxication defense which he admitted thathe had discussed with his counsel before accepting the plea.
Defendant's assertion that he misunderstood the word "consecutively" does not render hisplea involuntary. A fair reading of defendant's allocution and the description of the pleaarrangement by both his counsel and County Court, including the consequences of the plea andthe maximum time that he would serve, supports our conclusion that the plea was knowingly andvoluntarily entered (see People vGorham, 18 AD3d 1024, 1024-1025 [2005]; see also People v Torres, 203AD2d 208, 208 [1994]; People v Guerra, 157 AD2d 500, 501 [1990]).
As to the issue of postrelease supervision, while defendant received two five-year termsinstead of one as he was originally promised, Penal Law § 70.45 (5) (c) requires the twoterms to merge. Thus, with defendant only having to complete one term of postreleasesupervision, the error had no impact on his otherwise valid plea.
Nor do we find merit in defendant's claim of ineffective assistance of counsel, after viewingboth counsels' representations and considering the totality of the circumstances (see People vBaldi, 54 NY2d 137, 147 [1981]). Finally, having entered a plea of guilty prior to CountyCourt's determination of the suppression issues, he forfeited appellate review of those issues (see People v Sullivan, 37 AD3d974, 975 [2007], lv denied 8 NY3d 991 [2007]; People v Aponte, 180 AD2d910, 910 [1992], lv denied 79 NY2d 997 [1992]).
Crew III, J.P., Mugglin, Rose and Kane, JJ., concur. Ordered that the judgment is affirmed.