| People v Rogers |
| 2009 NY Slip Op 04593 [63 AD3d 1631] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v James S.Rogers, Also Known as Jimmy Jazz, Appellant. |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), rendered June14, 2007. The judgment convicted defendant, upon his plea of guilty, of criminal sale of acontrolled 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 him, upon his plea of guilty,of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]). Wereject the contention of defendant that County Court did not give due consideration to his pro semotion to withdraw his plea. The determination whether to entertain a pro se motion of adefendant who is represented by counsel is solely within the court's discretion (see People vRodriguez, 95 NY2d 497, 500 [2000]; People v Minter, 295 AD2d 927 [2002],lv denied 98 NY2d 712 [2002]), and we conclude that the court did not abuse its discretionin this case. We further reject defendant's contention that the bargained-for sentence is undulyharsh or severe. Finally, defendant failed to preserve for our review his contention that thesentence imposed constituted cruel and unusual punishment (see People v Reese, 31 AD3d 582 [2006], lv denied 7NY3d 851 [2006]) and, in any event, that contention lacks merit. "There are no exceptionalcircumstances warranting modification of the sentence, which was the statutory minimum andthe result of a negotiated plea" (id. at 583). Present—Scudder, P.J., Martoche,Fahey, Carni and Pine, JJ.