People v Fink

2012 NY Slip Op 05670 [97 AD3d 974]

July 19, 2012

Appellate Division, Third Department

As corrected through Wednesday, August 22, 2012

The People of the State of New York, Respondent, v Norman F.Fink, Appellant.

—[*1]Lisa K. Miller, McGraw, for appellant.

Mark D. Suben, District Attorney, Cortland (Kevin A. Jones of counsel), forrespondent.

Lahtinen, J. Appeal from a judgment of the County Court of Cortland County (Sherman, J.),rendered August 4, 2009, convicting defendant upon his pleas of guilty of the crimes of drivingwhile intoxicated, criminal contempt in the first degree and criminal possession of a weapon inthe third degree.

In February 2009, defendant was charged in a six-count indictment with various crimes,including felony driving while intoxicated. The following month, March 2009, he was indictedfor two counts of criminal contempt in the first degree. In satisfaction of both indictments,defendant pleaded guilty in April 2009 to one count of felony driving while intoxicated and onecount of criminal contempt in the first degree with the understanding that, if he completed analcohol rehabilitation program and was not arrested for any new offenses before sentencing, thePeople would recommend a sentence of five years of probation. County Court warned him thatfailure to adhere to those terms could result in consecutive prison sentences of up to11/3 to 4 years on each of the two counts.

Defendant failed to enter the alcohol rehabilitation program and, moreover, he was arrestedin May 2009 and charged with attempted robbery in the first degree, menacing in the seconddegree and criminal possession of a weapon in the third degree. He appeared for sentencing onthe two previous indictments and, at that time, he entered into a plea agreement whereby hewaived his right to indictment on the charges that occurred in May 2009, consented [*2]to prosecution on a superior court information and pleaded guilty tocriminal possession of a weapon in the third degree in satisfaction of all charges related to hisMay 2009 arrest. The agreed prison sentence was 11/3 to 4 years on criminalpossession of a weapon and also on the two earlier crimes to which he had pleaded guilty, allsentences to run concurrently. He was sentenced in accordance with the plea and now appeals.

We affirm. Defendant asserts that the plea colloquy failed to sufficiently establish the crimeof criminal possession of a weapon in the third degree. "[A] challenge to the factual sufficiencyof a plea allocution is foreclosed by defendant's appeal waiver" (People v Turner, 27 AD3d 962,963 [2006]; see People v Goldstein,51 AD3d 1271, 1273 [2008], affd 12 NY3d 295 [2009]; People v Jackson, 39 AD3d 1089,1090 [2007], lv denied 9 NY3d 845 [2007]). In any event, the comment by defendantduring the plea, in which he initially indicated that he did not possess a knife, did not render theplea insufficient. Following the comment, County Court made clear that the plea could not beaccepted if defendant did not possess a knife, the court asked defense counsel if she wanted tospeak with defendant, and the District Attorney offered clarification that defendant was not beingasked to admit attempted robbery or menacing but simply that he possessed a knife. Defendantthen unequivocally agreed that he had possessed a knife (see People v Edwards, 55 AD3d 1337, 1338 [2008], lvdenied 11 NY3d 924 [2009]; People v Turner, 27 AD3d at 963).

County Court did not err in imposing an enhanced sentence for defendant's failure to adhereto the terms of the plea involving the February 2009 and March 2009 indictments. Defendantadmitted failing to enroll in the required rehabilitation program and, by pleading guilty to a crimearising from his May 2009 arrest, it is clear that there was a legitimate basis for his post-pleaarrest (see People v Outley, 80 NY2d 702, 713 [1993]). Moreover, the sentences forthose earlier two crimes was part of the combined plea negotiated with the plea to the May 2009crime, which included the favorable disposition of running the sentences for the three separatecrimes concurrently.

Contrary to defendant's contention, the record reveals that counsel—who negotiatedadvantageous pleas—provided meaningful representation (see People v Nieves, 89 AD3d1285, 1286 [2011]; People vSingletary, 51 AD3d 1334, 1335 [2008], lv denied 11 NY3d 741 [2008]). Theremaining arguments have been considered and are unavailing.

Peters, P.J., Spain, Malone Jr. and Garry, JJ., concur. Ordered that the judgment is affirmed.