| People v Gerald |
| 2013 NY Slip Op 00855 [103 AD3d 1249] |
| February 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RalphT. Gerald, Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Hannah Stith Long of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti,J.), rendered February 2, 2010. The judgment convicted defendant, upon his plea ofguilty, of criminal possession of a controlled substance in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice by reducing the determinate term ofimprisonment to a term of four years and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofcriminal possession of a controlled substance in the second degree (Penal Law §220.18 [1]), defendant contends that his plea was not knowing, voluntary and intelligentbecause Supreme Court failed to advise him that, upon his guilty plea, he would berequired to pay a mandatory surcharge and a DNA databank fee and that his driver'slicense would be suspended for six months. Defendant's contentions are not preservedfor our review because he did not move to withdraw his plea or move to vacate thejudgment of conviction on those grounds (see People v Young, 81 AD3d 995, 996 [2011], lvdenied 16 NY3d 901 [2011]; People v Anderson, 298 AD2d 869, 869[2002], lv denied 99 NY2d 554 [2002]). In any event, those contentions arewithout merit. Although "a trial court has no obligation to explain to defendants whoplead guilty the possibility that collateral consequences may attach to their criminalconvictions, the court must advise a defendant of the direct consequences of the plea" (People v Catu, 4 NY3d242, 244 [2005]). "The direct consequences of a plea—those whose omissionfrom a plea colloquy makes the plea per se invalid—are essentially the corecomponents of a defendant's sentence" (People v Harnett, 16 NY3d 200, 205 [2011]). A mandatorysurcharge and DNA databank fee are not components of defendant's sentence (see People v Hoti, 12 NY3d742, 743 [2009]). Thus, "the court's failure [here] to pronounce the surcharge andfee[ ] prior to the entry of defendant's plea did not deprive . . . defendant ofthe opportunity to knowingly, voluntarily and intelligently choose among alternativecourses of action" (id.). Contrary to defendant's further contention, his plea wasnot rendered involuntary because the court failed to advise him that his conviction wouldresult in a six-month suspension of his driver's license. The loss of a driver's license isalso a collateral consequence of a conviction and thus the court's failure to disclose thatconsequence during the plea colloquy does not warrant vacatur of the plea (seePeople v Ford, 86 NY2d 397, 403 [1995]).[*2]
Defendant failed to preserve for our review hiscontention that the court erred in imposing an enhanced sentence without affording himan opportunity to withdraw his plea because defendant did not object to the enhancedsentence, nor did he move to withdraw the plea or to vacate the judgment on that ground(see People v Sprague, 82AD3d 1649, 1649 [2011], lv denied 17 NY3d 801 [2011]; People v Vaillant, 77 AD3d1389, 1390 [2010]). In any event, that contention lacks merit. The record establishesthat, at the time of his guilty plea, defendant "was clearly informed of the consequencesof his failure to appear at sentencing and the date on which sentencing was scheduled,and he nevertheless failed to appear on that date" (Sprague, 82 AD3d at 1649).Thus, upon defendant's violation of a condition of the plea agreement, the court was "nolonger bound by the agreement and [was] free to impose a greater sentence withoutoffering defendant an opportunity to withdraw his plea" (People v Santiago, 269AD2d 770, 770 [2000]; see People v Figgins, 87 NY2d 840, 841 [1995]).Moreover, the court was not required to conduct further inquiry into the cause ofdefendant's absence from a scheduled sentencing hearing because, "had there been anyplausible [medical] reason for defendant's failure to appear on the . . . priorscheduled sentencing date[ ], it is to be expected that defendant would have beenprepared at sentencing with some supporting documentation, particularly after a warranthad been issued to secure his appearance" (People v Goldstein, 12 NY3d 295, 301 [2009]; see People v Winters, 82AD3d 1691, 1691 [2011], lv denied 17 NY3d 810 [2011]).
Insofar as defendant contends that defense counsel was ineffective because he failedto produce documentary evidence that would have explained defendant's failure toappear at a scheduled sentencing hearing, that contention concerns matters outside therecord on appeal and thus must be raised by way of a motion pursuant to CPL article 440(see generally People vJohnson, 81 AD3d 1428, 1428 [2011], lv denied 16 NY3d 896 [2011]).Insofar as defendant otherwise contends that he was denied his right to effectiveassistance of counsel, that contention does not survive the plea of guilty because "[t]hereis no showing that the plea bargaining process was infected by [the] allegedly ineffectiveassistance or that defendant entered the plea because of his attorney['s] allegedly poorperformance" (People vRobinson, 39 AD3d 1266, 1267 [2007], lv denied 9 NY3d 869 [2007][internal quotation marks omitted]).
We agree with defendant, however, that the sentence is unduly harsh and severe withrespect to the imposition of a determinate term of imprisonment of seven years. As amatter of discretion in the interest of justice (see CPL 470.15 [6] [b]), wetherefore modify the judgment by reducing the determinate term of imprisonment to aterm of four years. Present—Centra, J.P., Fahey, Carni, Sconiers and Valentino, JJ.