| People v Clark |
| 2009 NY Slip Op 03333 [61 AD3d 1426] |
| April 24, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Tamara D.Clark, Appellant. |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Brian N. Bauersfeld of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, J.), renderedJanuary 8, 2008. The judgment convicted defendant, upon her plea of guilty, of attemptedcriminal sale of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her, upon a plea of guilty, ofattempted criminal sale of a controlled substance in the third degree (Penal Law §§110.00, 220.39 [1]). We reject the contention of defendant in her main brief that County Courtabused its discretion in denying her motion to withdraw her guilty plea, as well as the contentionin her pro se supplemental brief that the plea was involuntarily entered. There is no " 'evidenceof innocence, fraud, or mistake in inducing the plea' " (People v Pillich, 48 AD3d 1061 [2008], lv denied 11NY3d 793 [2008]; see CPL 220.60 [3]), nor is there any indication in the record beforeus that the plea was not voluntarily entered (see People v Seeber, 4 NY3d 780, 781-782 [2005]; People v Phillips, 56 AD3d 1163[2008]). Defendant failed to preserve for our review her contention in her main brief that thesentence constitutes cruel and unusual punishment (see People v Santilli, 16 AD3d 1056, 1057 [2005]), as well as thecontention in her pro se supplemental brief that the court erred in imposing an enhanced sentencewhen she failed to appear at sentencing (see People v Brooks, 59 AD3d 999 [2009]). Those contentions arewithout merit in any event. The sentence does not constitute cruel and unusual punishment (see People v Holmquist, 5 AD3d1041 [2004], lv denied 2 NY3d 800 [2004]; see generally People vThompson, 83 NY2d 477, 482-483 [1994]), and the court warned defendant that, if shefailed to appear at sentencing, the court would no longer be bound by the agreed-upon sentenceand would instead impose the maximum sentence allowed (see People v Winship, 26 AD3d 768 [2006], lv denied 6NY3d 899 [2006]; see generally Peoplev Bush, 30 AD3d 1078 [2006], lv denied 7 NY3d 785 [2006]).Present—Hurlbutt, J.P., Martoche, Centra, Pine and Gorski, JJ.