| People v Mercer |
| 2013 NY Slip Op 02293 [105 AD3d 1091] |
| April 4, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vArthur Mercer, Appellant. |
—[*1] D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Rose, J.P. Appeal from a judgment of the County Court of Ulster County (Ceresia,J.), rendered May 31, 2012, which resentenced defendant following his conviction of thecrime of criminal sale of a controlled substance in the third degree.
Defendant was arrested on June 2, 2010 for his involvement in two narcotics salesthat took place on that date. The next day, he was charged in a sealed indictment withtwo counts each of criminal sale of a controlled substance in the third degree andcriminal possession of a controlled substance in the third degree in connection with anearlier sale of heroin and crack cocaine to a confidential informant and an undercoverpolice officer that had taken place in May 2010. The indictment was then unsealed andfiled on June 10, 2010 and, after an adjournment to allow defendant an opportunity toretain counsel, he was arraigned the following day. In February 2011, defendant wasagain indicted, this time on six counts for his role in the June 2, 2010 sales. Defendantultimately pleaded guilty to criminal sale of a controlled substance in the thirddegree—the first count in the earlier indictment—in full satisfaction of allpending charges in August 2011, with the understanding that he would be sentenced as asecond felony offender to a term of three years in prison followed by two years ofpostrelease supervision. His subsequent motion to withdraw his plea was denied and, inNovember 2011, he was sentenced in accordance with the agreed-upon terms ofimprisonment but without a determination of his second felony offender status.Defendant was then returned to court in May 2012 and, following a hearing, CountyCourt determined that he was a second felony offender and resentenced him in [*2]accordance with the plea agreement. Defendant appeals.
We find no merit in defendant's claim that he was denied his right to counsel on thecharges contained in the sealed indictment. The record reflects that he was in custody asa result of the unrelated June 2, 2010 drug sales when the filing of the indictment inCounty Court commenced this action against him (see CPL 100.05, 210.10 [3]).He was assigned counsel in this action the next day at his adjourned arraignment(see CPL 170.10 [3] [a]). While defendant also claims that the sealed indictmentwas improperly amended without notice to him, there is only one indictment in the recordand no indication that it was amended at any time.
Defendant also contends that he was denied his statutory and constitutional rights toa speedy trial by the delay between the indictment and his plea. We need not, however,address the statutory claim as defendant forfeited it by virtue of his guilty plea (seePeople v O'Brien, 56 NY2d 1009, 1110 [1982]; People v Irvis, 90 AD3d 1302, 1303 [2011], lvdenied 19 NY3d 962 [2012]; People v Cunningham, 86 AD3d 859, 860 [2011]). Whiledefendant's constitutional right to a speedy trial survives the guilty plea, he offers nosupport for the contention that the People's declaration of readiness at his arraignmentwas illusory. Under the circumstances here, the delay was not excessive, and it can beattributed, at least in part, to the motions filed by defendant and the pretrial hearing heldat his request. Considering also that defendant does not specify any prejudice caused bythe delay, we find no basis to conclude that he was deprived of his constitutional right toa speedy trial (see People v Taranovich, 37 NY2d 442, 447 [1975]; People v Pope, 96 AD3d1231, 1233-1234 [2012]; People v Golgoski, 43 AD3d 551, 552 [2007]).
Nor do we find any merit to his claim that he should have been allowed to withdrawhis plea prior to being resentenced as a second felony offender. The plea was not inducedby an unfulfilled promise; rather, the resentence gave effect to the promise whichinduced defendant's plea. Finding that the agreement was appropriate, County Court wasnot required to offer defendant an opportunity to withdraw his plea (see People v Ruddy, 77 AD3d983, 984 [2010]; People vMartin, 17 AD3d 775, 776 [2005]). Moreover, inasmuch as the originalsentence, which failed to designate defendant as a second felony offender, was invalid asa matter of law (see CPL 400.21 [1]; People v Scarbrough, 66 NY2d673, 674 [1985], revg on dissenting mem of Boomer, J., 105 AD2d 1107,1107-1109 [1984]), County Court had the discretion to resentence defendant in such away that afforded him the benefit of his bargain (see People v Surdis, 23 AD3d 841, 843 [2005], lvdenied 6 NY3d 818 [2006]; People v Monereau, 181 AD2d 918, 919 [1992],lv denied 79 NY2d 1052 [1992]; People v May, 180 AD2d 974, 974[1992]; see also People v Sheils, 288 AD2d 504, 505 [2001], lv denied97 NY2d 733 [2002]; People v Colon, 282 AD2d 332, 332-333 [2001], lvdenied 96 NY2d 917 [2001]).
Defendant's pro se claims that he was denied an opportunity to contest thedesignation as a second felony offender is without merit as the People did, in fact, file asecond felony offender information prior to sentencing and then, again, beforeresentencing. Also, County Court held a hearing upon resentencing defendant, duringwhich it afforded him an opportunity to articulate the nature of his constitutionalchallenge to the prior conviction (see CPL 400.21 [5], [7]; People v Walton, 101 AD3d1489, 1490 [2012]; Peoplev Pierre, 45 AD3d 1056, 1057 [2007], lv denied 9 NY3d 1037 [2008]).His pro se claim that he was denied the effective assistance of counsel is without merit inlight of his favorable plea agreement, his acknowledgment on the record that he wassatisfied with the services of his attorney and the lack of any evidence that he wasprejudiced by any error by counsel (see People v Golgoski, 43 AD3d [*3]at 553; People v Washington, 3 AD3d 741, 743 [2004], lvdenied 2 NY3d 747 [2004]).
Stein, Spain and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.