| People v Wilson |
| 2012 NY Slip Op 08576 [101 AD3d 1248] |
| December 13, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jamal A.Wilson, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Warren County (Hall Jr., J.),rendered May 4, 2011, convicting defendant upon his plea of guilty of the crimes of criminal saleof a controlled substance in the third degree (two counts) and criminal possession of a controlledsubstance in the third degree (two counts).
Based on the alleged sales of narcotics in the Town of Queensbury, Warren County in May2010, defendant was indicted on two counts of criminal sale of a controlled substance in the thirddegree and two counts of criminal possession of a controlled substance in the third degreerelating to two separate drug sales. During plea negotiations, defendant pleaded guilty inWashington County to an unrelated charge of criminal possession of a controlled substance in thethird degree and, in November 2010, was sentenced to a prison term of seven years on thatcharge. As a result, the People offered defendant the opportunity to plead in Warren County toone count of criminal sale of a controlled substance in the third degree in exchange for a six-yearprison sentence, followed by two years of postrelease supervision, to be served concurrently withthe Washington County sentence, which defendant twice declined. In March 2011, after athorough colloquy in which defendant's rights were fully explained as were the consequences ofhis plea, defendant pleaded guilty to all four counts of the Warren County indictment in exchangefor a negotiated aggregate prison sentence of between 5 and 10 years, followed by two years ofpostrelease supervision. Thereafter, he was sentenced by County Court to four concurrent prison[*2]terms of 8½ years followed by two years of postreleasesupervision, to be served concurrently with his Washington County sentence. At sentencing,defendant sought to withdraw his plea, which County Court denied. Defendant now appeals andwe affirm.
Initially, we find no merit to defendant's contention that County Court erred in denying hismotion to withdraw his plea. The decision as to whether to permit a defendant to withdraw aguilty plea is committed to the sound discretion of the trial court and such request will generallynot be granted absent a showing of innocence, fraud or mistake in its inducement (see People v Flynn, 92 AD3d1148, 1150-1151 [2012], lv denied 19 NY3d 996 [2012]; People v Wilson, 92 AD3d 981,981 [2012], lv denied 19 NY3d 1029 [2012]). Defendant argues that he entered his pleasto the Warren County charges based on the mistaken belief that his appeal on his WashingtonCounty conviction would be successful. However, this issue is unpreserved as defendant did notraise this argument in moving to withdraw his plea (see People v Covell, 276 AD2d 824,825 [2000]; People v Carter, 254 AD2d 202 [1998], lv denied 93 NY2d 871[1999]). Rather, that motion was premised on defendant's claim that his admissions during theWarren County plea colloquy were inadequate and he had insufficient time to confer withcounsel; he now concedes that the allocution was sufficient to establish the elements of thecrimes to which he pleaded guilty. At most, defendant asserted—in moving to withdrawhis plea—that he had constitutional challenges to raise in the Washington County case, andthat the two prosecutions were somehow related, not that he was relying on an appellate reversalof the Washington County conviction.
Further, the plea colloquy did not cast significant doubt on defendant's guilt or call intoquestion the voluntariness of his plea so as to implicate the narrow exception to the preservationrequirement (see People v Lopez, 71 NY2d 662, 666 [1988]). In any event, mistake in theinducement cannot be established absent misrepresentation or similar impermissible conduct bystate agents and, thus, defendant is bound by his choice to plead guilty where the record does notreflect that such decision was induced by any misrepresentation and the plea was otherwiseknowing, voluntary and intelligent (seePeople v Griffin, 89 AD3d 1235, 1237 [2011]; People v Trank, 58 AD3d 1076,1077 [2009], lv denied 12 NY3d 860 [2009]).
Nor do we find the sentence imposed by County Court to be harsh or excessive taking intoaccount that defendant's maximum exposure on the counts for which he pleaded guilty was 18years—which could have been imposed consecutively to his Washington County sentence.The sentence was well within the range promised by the court and was eminently reasonable,subjecting defendant to just 1½ years of additional prison time beyond his WashingtonCounty sentence. Further, taking into consideration defendant's lengthy criminal record, whichspans several decades and multiple states, we perceive neither an abuse of discretion norextraordinary circumstances that would warrant a reduction in his sentence (see People v Merritt, 96 AD3d1169, 1172 [2012], lv denied 19 NY3d 1027 [2012]; People v Hatchcock, 96 AD3d1082, 1085 [2012], lv denied 19 NY3d 997 [2012]).
Peters, P.J., Rose, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed.