| People v Kopy |
| 2008 NY Slip Op 06510 [54 AD3d 441] |
| August 7, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Gary A. Kopy,Appellant. |
—[*1] Gerald A. Keene, District Attorney, Owego (Irene C. Graven of counsel), forrespondent.
Carpinello, J. Appeal from a judgment of the County Court of Tioga County (Sgueglia, J.),rendered March 9, 2007, convicting defendant upon his plea of guilty of the crime of criminalpossession of a forged instrument in the second degree.
Following indictment for the crime of criminal possession of a forged instrument in thesecond degree, defendant pleaded guilty to such charge with the express understanding that hewould be sentenced to a prison term of 3 to 6 years and that he would be required to makerestitution. After a second felony offender statement was filed and defendant admitted the priorfelony conviction, defendant was sentenced as a second felony offender to the agreed-upon termand was ordered to make restitution. He now appeals.
Defendant's sole contention on this appeal is that he was not advised at the time of his pleathat he would be sentenced as a second felony offender and, thus, his plea was not knowing andvoluntary. However, such argument is unpreserved for our review given defendant's failure tomove to withdraw the plea or vacate the judgment of conviction (see People v Mayers, 74NY2d 931, 931-932 [1989]; People vGranan, 48 AD3d 975, 975 [2008]).
If we were to consider defendant's argument, we would find it unpersuasive. At a prepleaconference, the People advised defendant and County Court that defendant had four prior felonyconvictions and that, if defendant did not accept the plea offer and he were convicted [*2]following trial, they would be seeking persistent felony offendertreatment. Defendant asked for and was granted an adjournment of approximately two weeks todiscuss the plea offer, which included a prison term of 3 to 6 years, with his attorney. At the timethat he accepted such offer and entered a guilty plea, it was made clear that he would besentenced to the agreed-upon term. Further, prior to sentencing, a second felony offenderstatement was filed by the People. At sentencing, defendant admitted his conviction of a priorfelony and the court pronounced sentence upon defendant as a second felony offender, allwithout defendant ever raising any objection to such proceedings. Under the circumstances, wewould not find that defendant's plea was anything other than knowing, intelligent and voluntary.Accordingly, we decline to take any corrective action under our interest of justice jurisdiction(cf. People v Bryant, 180 AD2d 874 [1992]).
Cardona, P.J., Peters, Spain and Stein, JJ., concur. Ordered that the judgment is affirmed.