| People v Carroway |
| 2011 NY Slip Op 03920 [84 AD3d 1501] |
| May 12, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v AnthonyCarroway, Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Jason J. Kovacs of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Ulster County (Bruhn, J.),rendered December 9, 2008, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the fourth degree.
Defendant pleaded guilty to criminal possession of a controlled substance in the fourthdegree in exchange for an agreed-upon prison sentence of five years followed by three years ofpostrelease supervision. At sentencing, defendant moved to withdraw his plea. Based upon someconfusion as to whether the prosecutor had mentioned at the plea hearing the potential forpersistent felony offender sentencing—which was not applicable in this case—andwhether that statement may have improperly induced defendant's plea, County Court offereddefendant a reduced sentence if he waived the right to appeal that issue. When defendantattempted to bargain for an even lower sentence, the court stated, "If [defendant] wants towithdraw his plea today, that's fine, it goes back on the trial calendar. We are throughnegotiating. It's the original offer or nothing." Defense counsel then informed the court thatdefendant would proceed with the five-year sentence. Counsel acknowledged defendant's statusas a second felony offender and the court sentenced him to five years in prison followed by threeyears of postrelease supervision. Defendant appeals.[*2]
Defendant contends that County Court should havepermitted him to withdraw his plea. The court did permit him to do so, but defendant insteadchose to adhere to the original offer. Thus, he cannot now complain of the court's actions in thatregard. Having abandoned his motion to withdraw his plea, defendant did not preserve theargument that his plea was involuntary (see People v Miller, 70 AD3d 1120, 1120-1121 [2010], lvdenied 14 NY3d 890 [2010]; Peoplev Watson, 62 AD3d 1032, 1033-1034 [2009]).
Defendant was properly sentenced as a second felony offender. By not controverting thelegitimacy of his prior conviction at sentencing or moving to vacate the judgment or sentence, hefailed to preserve this argument (seePeople v Bynum, 68 AD3d 1348, 1350 [2009], lv denied 14 NY3d 798 [2010]).We decline to exercise our interest of justice jurisdiction with respect to this aspect of thesentence because County Court and the prosecutor substantially complied with CPL 400.21(see id.). Finally, County Court imposed the agreed-upon sentence, which we do not findharsh or excessive considering that defendant has a serious criminal history and absconded afterhis arraignment on the present indictment.
Spain, J.P., Lahtinen, Kavanagh and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.