| People v Volfson |
| 2010 NY Slip Op 00410 [69 AD3d 1123] |
| January 21, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v BenjaminVolfson, Also Known as Omar Combs, Also Known as Bruce Williams, Also Known as RobertForrest, Also Known as John Doe, Appellant. |
—[*1] Stephen F. Lungen, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered October 7, 2008, convicting defendant upon his plea of guilty of the crimes of criminalpossession of marihuana in the first degree and forgery in the second degree.
In January 2008, the State Police stopped a rental truck in the Town of Mamakating,Sullivan County and conducted a canine sniff search that identified a large quantity of marihuanaconcealed inside the truck. The driver indicated that defendant, who was traveling in anothervehicle, was responsible for the shipment. When defendant was stopped shortly thereafter,marihuana was found on his person and the truck's rental agreement was found in his vehicle.Defendant was arrested and subsequently charged with, among other things, criminal possessionof marihuana in the first degree and forgery in the second degree. He pleaded guilty to these twocharges under an agreement that included a waiver of the right to appeal and provided that hewould be sentenced as a second felony offender to an aggregate prison term of 7½ years,with three years of postrelease supervision and, further, that New York would allow the sentenceto run concurrently with any sentence imposed on charges then pending in Utah and NewMexico. Defendant now appeals.
Defendant's argument that his guilty plea was not knowingly, voluntarily, and intelligentlymade is not foreclosed by his waiver of the right to appeal (see People v Seaberg, 74NY2d 1, 10-11 [1989]; People vRomano, 45 AD3d 910, 912 [2007], lv denied 10 NY3d 770 [2008]).Nonetheless the issue is not preserved for our review due to defendant's failure to move towithdraw the plea or vacate the judgment of conviction (see People v Mondore, 18 AD3d 961, 961 [2005]). The exceptionto the preservation rule does not apply as defendant made no statements during the plea colloquythat were inconsistent with guilt (seePeople v Alexander, 31 AD3d 885, 886 [2006]; People v Mondore, 18 AD3d at961). In any event, defendant's claim that he did not understand the import of his waiver of therights to trial and appeal is belied by the record of County Court's extensive colloquies with him(see People v Swarts, 64 AD3d801, 802 [2009]).
Defendant further claims that his trial counsel was ineffective in failing to fully explain theconsequences of the plea and in improperly discouraging him from exercising his right to trial.To the extent this claim relates to the voluntariness of his plea, it survives his waiver of the rightto appeal (see People v Marshall,66 AD3d 1115, 1116 [2009]; People v Walley, 63 AD3d 1284, 1285 [2009]), but is unpreserveddue to his failure to move to withdraw the plea or vacate the judgment of conviction (see People v Maldonado, 61 AD3d1220 [2009]; People v Sterling,57 AD3d 1110, 1112-1113 [2008], lv denied 12 NY3d 788 [2009]). In any event, asto those matters revealed in the record, there is no indication that defendant was not affordedmeaningful representation (see People v Rivera, 71 NY2d 705, 708-709 [1988];People v Baldi, 54 NY2d 137, 146-147 [1981]). To the extent that defendant's assertionsare based on matters outside the record, they should be addressed by a motion pursuant to CPL440.10 (see People v Echavarria, 53AD3d 859, 863-864 [2008], lv denied 11 NY3d 832 [2008]).
Our review of defendant's claim that his prison sentence is harsh and excessive is precludedby his waiver of the right to appeal (seePeople v Lopez, 6 NY3d 248, 255-256 [2006]; People v Spangenberg, 49 AD3d 969 [2008], lv denied 10NY3d 870 [2008]). However, the record of the sentencing proceedings reveals that althoughCounty Court clearly intended to sentence defendant in accordance with the plea agreement, itinadvertently failed to pronounce sentence separately on each of the two counts to which hepleaded guilty, as required by CPL 380.20. The matter must, therefore, be remitted forsentencing on both counts (see People v Sturgis, 69 NY2d 816, 817-818 [1987]; People v Murphy, 37 AD3d 976,976-977 [2007]).
Mercure, J.P., Peters, Lahtinen and Kavanagh, JJ., concur. Ordered that the judgment ismodified, on the law, by vacating the sentence imposed; matter remitted to the County Court ofSullivan County for resentencing; and, as so modified, affirmed.