| People v Johnson |
| 2012 NY Slip Op 05679 [97 AD3d 990] |
| July 19, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v KennethJohnson, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered April 7, 2010, convicting defendant upon his plea of guilty of the crime of attemptedassault in the second degree.
Defendant was indicted and charged with two counts of assault in the second degreefollowing a scuffle with two deputies at the Albany County Correctional Facility, where he wasan inmate. In full satisfaction of that indictment, defendant waived his right to appeal andpleaded guilty to one count of attempted assault in the second degree—with theunderstanding that he would be sentenced to a prison term of 1½ to 3 years. At sentencing,however, County Court imposed a prison term of 2 to 4 years, prompting this appeal.
We affirm. Although defendant's motion to dismiss the indictment was timely (seeCPL 190.50 [5] [c]), any assertion that he was denied the right to appear and testify before thegrand jury is both encompassed by his valid waiver of the right to appeal (see People v Watkins, 77 AD3d1403, 1404 [2010], lv denied 15 NY3d 956 [2010]; People v Winchester, 38 AD3d1336, 1337 [2007], lv denied 9 NY3d 853 [2007]) and waived by his subsequentguilty plea (see People v Steed, 17AD3d 928, 929 [2005], lv denied 5 NY3d 770 [2005]; People v Chappelle,250 AD2d 878, 878-879 [1998], lv denied 92 NY2d 894 [1998]; People v Torra,191 AD2d 738, 738[*2][1993], lv denied 81 NY2d 1021[1993]). Moreover, defendant has not alleged—and we are unable to discern—anyspecial circumstances that would warrant a departure from this general rule (see People vDennis, 223 AD2d 814, 815 [1996], lv denied 87 NY2d 972 [1996]).
As for defendant's claim that County Court abused its discretion in imposing an enhancedsentence, although this argument survives defendant's waiver of appeal (see People v Donnelly, 80 AD3d797, 798 [2011]), the record does not reflect that defendant moved to withdraw his plea orvacate the judgment of conviction; accordingly, this issue is unpreserved for our review (seeid. at 798; People v Armstead,52 AD3d 966, 967 [2008]). In any event, "[w]here a court determines that the negotiatedsentence is not appropriate, it may impose an enhanced sentence if it first offers the defendant theopportunity to withdraw his or her plea" (People v Sanchez, 87 AD3d 1226, 1226 [2011], lv denied18 NY3d 928 [2012]; accord People vMattucci, 92 AD3d 1029, 1029-1030 [2012]; see People v Wilson, 69 AD3d 970, 971 [2010]). County Court didprecisely that here, and defendant declined the invitation to withdraw his plea. Under thesecircumstances, we find no abuse of discretion in County Court's decision to enhance the sentence(see People v Mattucci, 92 AD3d at 1030; People v Wilson, 69 AD3d at 971).Defendant's remaining contentions, to the extent that they are properly before us, have beenexamined and found to be lacking in merit.
Mercure, J.P., Rose, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.