| People v Brennan |
| 2009 NY Slip Op 03967 [62 AD3d 1167] |
| May 21, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Thomas L.Brennan, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Peters, J. Appeal from a judgment of the County Court of Schenectady County (Drago, J.),rendered February 22, 2008, convicting defendant upon his plea of guilty of the crimes ofattempted robbery in the second degree, attempted criminal possession of a weapon in the seconddegree and conspiracy in the fourth degree.
In January 2007, defendant conspired with Charles Little and Aaron Peavy to rob a drugdealer in the City of Schenectady, Schenectady County. In the course of the attempted robbery,Peavy was killed and Little was injured. After being confronted with evidence of hisparticipation, defendant agreed to plead guilty to attempted robbery in the second degree,attempted criminal possession of a weapon in the second degree and conspiracy in the fourthdegree, waive his right to appeal and comply with the terms of a cooperation agreement. Thecooperation agreement, which was fully set forth during the plea proceeding, required thatdefendant cooperate and testify truthfully at all stages of both his proceeding and the criminalproceedings involving Little. In exchange, the People promised to recommend concurrentdeterminate prison sentences of between two and four years. It further provided that if defendantdid not comply fully with his obligations, the People would be free to recommend, and the courtto impose, "any sentence consistent with [his] guilty pleas, including consecutive sentences."
Thereafter, defendant refused to testify at Little's trial or to otherwise cooperate with the[*2]prosecution of that matter. At sentencing, defendantconfirmed his understanding that the plea agreement required his full cooperation andacknowledged that he had breached its terms. County Court sentenced him to consecutive prisonterms of seven years for the attempted robbery conviction, seven years for the attempted criminalpossession of a weapon conviction, and 1
Defendant's challenge to the voluntariness of his plea, although not encompassed by hiswaiver of appeal, is not preserved for our review because he failed to move to withdraw his pleaor vacate the judgment of conviction (see People v Grant, 60 AD3d 1202, 1202 [2009]; People v Jeske, 55 AD3d 1057,1058 [2008], lv denied 11 NY3d 898 [2008]). Moreover, the narrow exception to thepreservation rule does not apply here as he did not make any statement during the plea that castdoubt on his guilt or otherwise called into question the voluntariness of his plea (see People vLopez, 71 NY2d 662, 666 [1988]; People v Jeske, 55 AD3d at 1058). In any event,our review of the colloquy reveals that defendant's plea was knowing, intelligent and voluntary.Moreover, he affirmed his understanding that his failure to cooperate could result in theimposition of consecutive maximum sentences.
Defendant also contends that County Court erred in imposing consecutive sentences upon hisconvictions because his conduct in driving Little and Peavy to the victim's home formed thebasis for each of the crimes to which he pleaded. While this challenge to the legality of hissentence survives his guilty plea and waiver of appeal (see People v Laureano, 87 NY2d640, 643 [1996]; People vMiddleton, 32 AD3d 557, 557 [2006]), we are unpersuaded. Concurrent sentences mustbe imposed for "two or more offenses committed through a single act or omission, or through anact or omission which in itself constituted one of the offenses and also was a material element ofthe other" (Penal Law § 70.25 [2]; see People v Ramirez, 89 NY2d 444, 451[1996]). When Little and Peavy met at defendant's residence, armed with loaded firearms andprepared to rob the drug supplier, "the crime of conspiracy was complete" (People vArroyo, 93 NY2d 990, 992 [1999]; see People v Ribowsky, 77 NY2d 284, 293[1991]; People v Ballard, 38 AD3d1001, 1003 [2007], lv denied 9 NY3d 840 [2007]). The counts charging defendantwith attempted criminal possession of a weapon in the second degree (see Penal Law§§ 110.00, 265.03 [1] [b]) and attempted robbery in the second degree (seePenal Law §§ 110.00, 160.10 [1]) do not contain overlapping elements and werebased on separate and distinct acts that occurred subsequent to the conspiracy (see People vArroyo, 93 NY2d at 992; People v Yong Yun Lee, 92 NY2d 987, 989 [1998];People v Ramirez, 89 NY2d at 451-452; People v Rivette, 20 AD3d 598, 602-603 [2005], lv denied5 NY3d 809 [2005]; People v Miller, 262 AD2d 796, 798 [1999]). Accordingly,imposition of consecutive sentences was permitted.
Finally, defendant's challenge to the severity of his sentence is precluded by his valid appealwaiver (see People v Burt, 57AD3d 1171, 1172 [2008]; People vSchmidt, 57 AD3d 1104, 1104 [2008]).
Cardona, P.J., Lahtinen, Kane and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.