| People v Riley |
| 2012 NY Slip Op 05673 [97 AD3d 982] |
| July 19, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Cynthia Riley,Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Warren County (Hall Jr., J.),rendered November 3, 2010, convicting defendant upon her plea of guilty of the crime ofcriminal sale of a controlled substance in the third degree (two counts).
Defendant was charged with two counts of criminal sale of a controlled substance in the thirddegree based upon her sale of the narcotics oxycodone and oxymorphone to an undercover policeofficer. Pursuant to an agreement reached with County Court, defendant entered anAlford plea to the charges and began serving a one-year term of interim probation. Ifdefendant successfully completed the interim probation, County Court would sentence her to fiveyears of probation. However, if defendant failed to comply with the terms of the interimprobation, she could be sentenced to any legally permissible sentence that County Court deemedappropriate. Defendant did not comply with the interim probation and was sentenced to fiveyears in prison followed by two years of postrelease supervision.
Defendant's contention that County Court erred in accepting her plea without first holding acompetency hearing pursuant to CPL 730.30 is not preserved for our review as the record beforeus indicates that she has failed to move to withdraw her plea or vacate the judgment ofconviction (see People v Rought, 90AD3d 1247, 1248 [2011], lv denied 18 NY3d 962 [2012]; People v Klages, 90 AD3d 1149,1150 [2011], lv denied 18 NY3d 925 [2012]). The [*2]narrow exception to the preservation requirement is inapplicable asdefendant did not make any statements during the plea allocution that negated an essentialelement of the crime or cast doubt upon the voluntariness of her plea (see id.). Althoughdefendant was taking several prescription medications, the transcripts of her plea and otherproceedings reflect that they did not affect her ability to understand the proceedings or make anintelligent choice from among the alternatives available to her (see People v Amidon, 79 AD3d1158, 1159 [2010], lv denied 16 NY3d 741 [2011]; People v Gomez, 72 AD3d 1337,1338 [2010]).
Defendant also claims that her sentence was harsh and excessive. Defendant was afforded theopportunity to avoid prison. However, she failed to comply with the terms of her interimprobation and did not take responsibility for these crimes or her conduct underlying the probationviolation. We perceive no abuse of discretion or extraordinary circumstances warranting amodification of the sentence imposed, which falls within the authorized sentencing range(see Penal Law §§ 70.45 [2] [b]; 70.70 [2] [a] [i]; 220.39; People vDowling, 92 AD3d at 1035; Peoplev Smurphat, 91 AD3d 980, 981 [2012], lv denied 18 NY3d 962 [2012]).
Peters, P.J., Lahtinen, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.