| People v Smith |
| 2008 NY Slip Op 02514 [49 AD3d 1032] |
| March 20, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Matthew C.Smith, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Torrence L. Schmitz of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Broome County (Mathews, J.),rendered March 12, 2007, convicting defendant upon his plea of guilty of the crime of criminalsale of a controlled substance in the third degree.
Defendant was charged in two separate indictments with the crime of criminal sale of acontrolled substance in the third degree after selling cocaine to an undercover police officer inApril and June 2006. Following consolidation of the indictments, defendant pleaded guilty to onecount of criminal sale of a controlled substance in the third degree in full satisfaction of thecharges. Consistent with the plea agreement, County Court sentenced him as a second felonyoffender to a prison term of 3½ years, with three years of postrelease supervision.Defendant now appeals.
We affirm. Defendant's challenge to the voluntariness of his plea is unpreserved for ourreview given his failure to move to withdraw the plea or vacate the judgment of conviction (see People v Folk, 43 AD3d 1229,1230 [2007], lv denied 9 NY3d 1033 [2008]; People v Brill, 42 AD3d 823, 823 [2007], lv denied 9NY3d 960 [2007]). In any event, even assuming that defendant's contention that County Courtmisrepresented the maximum sentence defendant was facing under the indictments at hisarraignment is correct, inaccurate information concerning [*2]sentence exposure is not dispositive of whether a plea wasknowingly and voluntarily entered (see People v Garcia, 92 NY2d 869, 870 [1998]).Furthermore, as our review of the record reveals no evidence that defendant relied on thisinformation in entering his plea, we are convinced that defendant entered a knowing, voluntaryand intelligent plea (see People v Wilkinson, 151 AD2d 801, 802 [1989], lvdenied 74 NY2d 821 [1989]). Finally, as both indictments are for offenses defined by thesame statutory provision, we find that County Court acted within its discretion in consolidatingthe indictments pursuant to the People's application (see CPL 200.20 [2] [c]; [4]; People v Ferrer, 17 AD3d 777,777 [2005], lv denied 5 NY3d 788 [2005]).
Cardona, P.J., Spain, Carpinello and Stein, JJ., concur. Ordered that the judgment isaffirmed.