| People v Hernandez |
| 2009 NY Slip Op 03797 [62 AD3d 1095] |
| May 14, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Shana A.Hernandez, Appellant. |
—[*1] Gwen Wilkinson, District Attorney, Ithaca (Andrew J. Bonavia of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Tompkins County (Rowley,J.), rendered October 26, 2007, convicting defendant upon her plea of guilty of the crimes ofcriminal possession of a forged instrument in the second degree (17 counts), grand larceny in thethird degree and grand larceny in the fourth degree (two counts).
In satisfaction of a 22-count indictment, defendant agreed to plead guilty to multiple countsof criminal possession of a forged instrument in the second degree and grand larceny in the thirdand fourth degrees. The plea was entered with the understanding that defendant would besentenced as a second felony offender and that she would receive the minimum sentence of 2 to4 years in prison for each conviction. It was further agreed that defendant would have theopportunity, prior to sentencing, to advocate for placement in a particular drug treatmentprogram under parole supervision in lieu of prison time (see CPL 410.91). At sentencing,the prosecutor informed County Court that the People could not consent to this alternativesentence because defendant was not eligible for drug treatment because she did not have acontrolled substance dependence. Defendant was thus sentenced to concurrent prison terms of 2to 4 years. She now appeals.
Defendant first claims that the agreed-upon sentence is invalid because the People failed tofile a predicate felony statement and because she never agreed to be sentenced as a second [*2]felony offender. The plea was entered into with the expressunderstanding that there would be an "admission to the predicate felony." To this end, defensecounsel expressly acknowledged that defendant was "willing to admit she's a predicate felon."Moreover, when County Court inquired about "the details of the . . . predicatefelony," the prosecutor outlined the crime, its conviction date and the jurisdiction in which it wascommitted. Defendant admitted the prior conviction and confirmed that there was no pendingappeal or legal challenge to it. She also waived the right to assert a legal challenge to thisconviction. Under these circumstances, we find that there was substantial compliance with thestatutory requirements of CPL 400.21, i.e., "apprising the court of the prior conviction andproviding defendant with reasonable notice and an opportunity to be heard" (People vBouyea, 64 NY2d 1140, 1142 [1985]). The People's failure to thereafter file a predicatefelony statement was therefore harmless (see id. at 1142; see also People v Carpenter, 52 AD3d729, 730 [2008], lv denied 11 NY3d 830 [2008]), and defendant was properlysentenced as a second felony offender (see People v Ellis, 53 AD3d 776, 777 [2008]).
Defendant also argues that the People violated CPL 410.91 (4) by failing to inform her "atthe time of her plea" that they would not consent to a sentence of parole supervision and CountyCourt "led her to believe" that she would receive this sentence. To the extent these arguments arepreserved for our review (see e.g.People v Abdallah, 50 AD3d 1312 [2008]), we find each to be without merit. Therecord makes clear that the People's lack of a stated position on consent to parole supervision atthe time of the plea itself was to permit defendant additional time to advocate for it. To this end,defense counsel stated his intention to present the People with "information" on this issue andadvised that "we'll see where we can go with that." Thus, defendant's present claim that thePeople violated CPL 410.91 (4) by not taking a position until sentencing is disingenuous and, inany event, without merit (see People v Rodriguez, 275 AD2d 861 [2000], lvdenied 96 NY2d 738 [2001]).
Furthermore, while the Assistant District Attorney agreed to discuss parole supervision,neither he nor County Court made any promises on the issue. In pleading guilty, defendantacknowledged that no promises had been made to her "other than what [was discussed] in opencourt." She further acknowledged that a sentence of parole supervision was dependent "on theoutcome of . . . discussions." At sentencing, the Assistant District Attorneyindicated, without contradiction, that discussions had in fact taken place but that, ultimately,defendant was simply not eligible for the drug treatment program because she was not dependenton a controlled substance (see CPL 410.91). Under these circumstances, we find nomerit to the claim that she was somehow misled about her sentence.
Cardona, P.J., Peters, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed.