| People v Smith |
| 2011 NY Slip Op 08511 [89 AD3d 1328] |
| November 23, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Shantik T. Smith,Also Known as Champ, Appellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Saratoga County (Scarano, J.),rendered December 2, 2010, convicting defendant upon his plea of guilty of the crime of criminal saleof a controlled substance in the fifth degree.
In satisfaction of a six-count indictment, defendant pleaded guilty to criminal sale of a controlledsubstance in the fifth degree in exchange for an agreed-upon sentence of 2½ years in prisonfollowed by a term of postrelease supervision between 1½ and 3 years. At sentencing, defendantmoved to withdraw his guilty plea, contending that he was not guilty and that his plea was not knowinglyand intelligently made. County Court denied the motion without a hearing and sentenced defendant inaccordance with the plea agreement to 2½ years in prison followed by two years of postreleasesupervision. Defendant appeals.
We affirm. The decision whether to allow a defendant to withdraw a guilty plea rests within the trialcourt's sound discretion, and a hearing is only required when the circumstances present a genuinequestion about the voluntariness of the plea (see People v Moreno, 86 AD3d 863, 864 [2011]; People v Shurock, 83 AD3d 1342,1343 [2011]). Here, the record reveals that defendant was fully advised about the consequences of hisplea, had the opportunity to discuss the matter with his attorney, understood the repercussions, andvoluntarily and unequivocally [*2]admitted to the commission of thecrime. Under the circumstances, we cannot say that County Court abused its discretion in denyingdefendant's application without a hearing based upon his unsubstantiated claims of innocence andineffective assistance of counsel (see People v Moreno, 86 AD3d at 864-865; People v Herringshaw, 83 AD3d 1133,1133-1134 [2011]).
Defendant next contends that he was improperly sentenced as a second felony offender, however,that claim is unpreserved for our review by virtue of his failure to make an objection at sentencing (see People v Califano, 84 AD3d 1504,1506 [2011], lv denied 17 NY3d 805 [2011]; People v Berry, 78 AD3d 1226, 1228 [2010], lv denied 16NY3d 828 [2011]). In any event, defendant pleaded guilty with the understanding that he would besentenced as a second felony offender, a predicate felony statement was provided prior to sentencing,he admitted that he was the person convicted, and defense counsel, on defendant's behalf, declined theopportunity to controvert any aspect of the prior conviction. Under the circumstances, we findsubstantial compliance with CPL 400.21 (3) (see People v Glynn, 72 AD3d 1351, 1352 [2010], lv denied 15NY3d 773 [2010]; People v Atkinson, 58 AD3d 943, 944 [2009]).
Defendant cannot be heard to complain that the presentence investigation report was incompletewhen this situation was caused by his refusal to be interviewed by the Probation Department (see People v Ali-Rachedi, 34 AD3d981, 981 [2006], lv denied 8 NY3d 878 [2007]; People v Rosado, 29 AD3d 430, 431 [2006], lv denied 7NY3d 794 [2006]). Finally, defendant's contention that he was not made aware of the specific term ofpostrelease supervision imposed is not preserved for our review (see People v Lee, 80 AD3d 1072, 1073 [2011], lv denied 16NY3d 832, 833 [2011]).
Rose, J.P., Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the judgment is affirmed.