| People v D'Agostino |
| 2008 NY Slip Op 07714 [55 AD3d 353] |
| October 9, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v PeterD'Agostino, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Timothy C. Stone of counsel), forrespondent.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered October 19,2007, convicting defendant, upon his plea of guilty, of criminal possession of marijuana in thefirst degree, and sentencing him to a term of three years, unanimously affirmed. The matter isremitted to Supreme Court, New York County, for further proceedings pursuant to CPL 460.50(5).
Defendant made a valid waiver of his right to appeal. Therefore, the only claims raised onthis appeal that would survive the waiver are defendant's challenges to the voluntariness of hisplea and the effectiveness of his representation by counsel in connection with the plea (seePeople v Parilla, 8 NY3d 654, 660 [2007]). However, we find that the plea was voluntary(see People v Fiumefreddo, 82 NY2d 536, 543 [1993]), that the court properly denieddefendant's motion to withdraw it (see People v Frederick, 45 NY2d 520 [1978]), andthat counsel provided effective assistance (see People v Ford, 86 NY2d 397, 404 [1995]).
Defendant agreed to a disposition whereby he would plead guilty to the sole count of theindictment and receive a sentence of 2½ years. The court also imposed other conditions,including a requirement that defendant surrender the tenancy of his apartment, which had been aninstrumentality of the crime, and which, in any event, was already the subject of a civil evictionproceeding. The court also warned defendant that if he failed to acquiesce in his eviction prior tosentencing, the court could impose any sentence authorized by law, up to the maximum of5½ years.
Subsequently, defendant, represented by new counsel, moved unsuccessfully to withdraw hisplea. Since defendant had failed to surrender his apartment (from which he was ultimatelyevicted), the court sentenced him to three years instead of 2½ years.
In his plea withdrawal motion, and on appeal, defendant's principal argument is that his pleawas rendered involuntary because the court misled him into believing that his only options wereto accept the offered disposition or go to trial, whereas a third option was to plead guilty to theindictment "unconditionally," pursuant to CPL 220.10 (2). He similarly argues that his counselprovided ineffective assistance by failing to correct this misimpression. Even assuming [*2]that defendant was unaware of the third option, defendant has notshown how he was prejudiced by that lack of knowledge. While under an unconditional plea thecourt would not have been able to insist that defendant surrender his tenancy (which, as noted,defendant did not in fact surrender, and which he lost by way of Civil Court proceedings), such aplea would have permitted the court to impose any prison sentence up to the maximum permittedby law. There is no reason to believe that defendant was interested in a plea that did nothing tolimit his sentencing exposure; rather, it was evident during the extended plea negotiations thatdefendant sought to significantly reduce his prison term. Likewise, there is no reason to believethat defendant would have been in any better position had he chosen to plead guiltyunconditionally. We have considered and rejected defendant's remaining arguments concerningthese matters.
Defendant's waiver of his right to appeal forecloses review of his claims regarding thesuppression proceedings and his procedural claims regarding his sentencing. As an alternativeholding, we also reject them on the merits. Concur—Andrias, J.P., Nardelli, McGuire,Moskowitz and Renwick, JJ.