| People v Cintron |
| 2009 NY Slip Op 03960 [62 AD3d 1157] |
| May 21, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jason Cintron,Appellant. |
—[*1] Jason Kovacs, Special Prosecutor, Kingston, for respondent.
Malone Jr., J. Appeal from a judgment of the County Court of Ulster County (Czajka, J.),rendered May 25, 2007, convicting defendant upon his plea of guilty of two counts of the crimeof criminal sale of a controlled substance in the fourth degree.
Defendant was indicted on two counts each of criminal sale of a controlled substance in thefirst degree and criminal possession of a controlled substance in the fifth degree arising out of hisalleged possession and sale of methadone. Upon defendant's motion, County Court (Bruhn, J.)ordered that the criminal sale counts be reduced to the lesser included crime of criminal sale of acontrolled substance in the fourth degree. Defendant thereafter pleaded guilty to all of the countsin the indictment. At sentencing, County Court (Czajka, J.) was erroneously advised that thecriminal possession counts had been dismissed.[FN*]County Court accordingly sentenced defendant upon the criminal sale counts, as agreed, toconcurrent prison terms of two years, and three years of postrelease supervision. Defendantappeals.
We affirm. Defendant's failure to move to withdraw his guilty plea or vacate the [*2]judgment of conviction leaves his challenge to the voluntariness ofhis plea unpreserved (see People vTerry, 55 AD3d 1149, 1150 [2008], lv denied 11 NY3d 931 [2009]). Nor did"the plea colloquy negate[ ] an essential element of the crime or otherwise cast doubt upon hisguilt so as to trigger the exception to the preservation requirement" (id.). In any event,we are satisfied from our review of the record that defendant knowingly and voluntarily enteredinto the plea.
Defendant's claim that he received the ineffective assistance of counsel, to the extent thatalleged ineffective assistance affected the voluntariness of his plea, is similarly unpreservedgiven his failure to move to withdraw the plea or vacate the judgment of conviction (see People v Dobrouch, 59 AD3d781, 781 [2009]). In any event, defendant was made well aware of the charged crimes andhis sentencing exposure during his plea colloquy and stated his satisfaction with counsel, and weconclude that defendant received meaningful representation (see id.).
Defendant also argues that, given the lack of proof as to his knowledge of the weight of themethadone that he possessed and sold, County Court should have dismissed the indictment. Thatknowledge, however, is not an element of any charged offense (see Penal Law §15.20 [4]; People v Estrella, 303 AD2d 689 [2003], lv denied 1 NY3d 571[2003]; People v Wilson, 245 AD2d 402, 402 [1997], lv denied 91 NY2d 946[1998]). Defendant's related argument that there was insufficient evidence to indict him upon theoriginal criminal sale counts is waived by his guilty plea (see People v Dunbar, 53 NY2d868, 871 [1981]; People vMelendez, 48 AD3d 960, 960 [2008], lv denied 10 NY3d 962 [2008]) and, inany event, those counts were appropriately reduced by County Court (see CPL 210.20[1-a]).
Lastly, we are unpersuaded that the sentence imposed, which was agreed upon by the partiesand included the minimum prison term allowed and a permissible period of postreleasesupervision, was harsh and excessive (see People v Nelson, 51 AD3d 1137, 1138 [2008], lvdenied 11 NY3d 739 [2008]).
Mercure, J.P., Rose, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: The criminal possession countswere apparently still extant at the time of sentencing, but defendant claims—and thePeople do not dispute—that they were subsequently dismissed.