| People v Purcelle |
| 2013 NY Slip Op 04055 [107 AD3d 1050] |
| June 6, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vBrittain J. Purcelle, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Rita M. Basile of counsel), forrespondent.
Rose, J.P. Appeal from a judgment of the County Court of Broome County (Smith,J.), rendered June 20, 2011, convicting defendant upon his plea of guilty of the crime ofcriminal possession of a weapon in the third degree.
Defendant was charged with criminal possession of a weapon in the third degree andhe proceeded pro se with the assistance of "shadow" counsel. He eventually reached anagreement whereby he pleaded guilty to the charge and County Court adjournedsentencing with the understanding that if defendant successfully completed a drugtreatment program, the plea would be vacated and the indictment dismissed. CountyCourt warned defendant that if he was arrested or did not complete a drug treatmentprogram, he faced a prison sentence of 3½ to 7 years. Defendant was eventuallyreleased from jail in order to expedite his ability to gain entry into a drug treatmentprogram, but he was later arrested and incarcerated. After being released again,defendant was arrested again and County Court, after denying his motion to withdraw hisguilty plea, sentenced him to a prison term of 3 to 6 years. Defendant now appeals.
We are not persuaded that County Court violated defendant's due process right to bepresent at all material stages of the proceedings. Although defendant relies on twopostplea conferences that were attended by his standby counsel without his presence, therecord makes clear that defendant's presence was not required because they dealt onlywith procedural issues (see People v Horne, 97 NY2d 404, 416 [2002];People v Horan, 290 AD2d 880, 884 [2002], lv denied 98 NY2d 638[2002]; People v Alfieri, 201 AD2d 935, 935 [1994], lv denied 83 NY2d908 [1994]). Moreover, other on-the-record postplea conferences were held withdefendant present regarding the same issues and he was able to meaningfully participate(see People v Criscitello, 32AD3d 1112, 1113 [2006]).
Defendant also contends that County Court abused its discretion in denying hismotion to withdraw his guilty plea. He argues that the plea agreement included a promisethat County Court would transport him from the local jail to a drug rehabilitation facilityand that the court breached the agreement when, instead, it released him. The recordreveals, however, that the court's offer to sign a transfer order was not part of theagreement but was merely an effort to accommodate defendant. In any event, the offerbecame academic once defendant was released, and he never objected to being releasedprior to making his motion to withdraw the guilty plea almost one year later.Accordingly, we can find no basis to disturb County Court's exercise of its discretion indenying defendant's motion to withdraw his plea (see People v Pittman, 104 AD3d 1027, 1027-1028 [2013];People v Wilson, 92 AD3d981, 981 [2012], lv denied 19 NY3d 1029 [2012]; People v Moreno, 86 AD3d863, 864 [2011], lv denied 17 NY3d 954 [2011]).
Contrary to defendant's contention, he was afforded an adequate opportunity todispute his postplea arrests, which were the basis for imposing the enhanced sentence(see People v Outley, 80 NY2d 702, 713 [1993]). In fact, defendant candidlyadmitted that he had been rearrested and that he continued to use and sell drugs whilereleased (see People vMcDevitt, 97 AD3d 1039, 1041 [2012], lv denied 20 NY3d 987 [2012];People v Saucier, 69 AD3d1125, 1126 [2010]). Inasmuch as County Court had repeatedly warned defendantthat an enhanced sentence would be imposed if he were rearrested, we find no abuse ofdiscretion (see People v Saucier, 69 AD3d at 1126; People v Baez, 67 AD3d1204, 1204 [2009], lv denied 14 NY3d 797 [2010]; People v Holmes, 67 AD3d1069, 1071 [2009]).
We have reviewed defendant's remaining contentions and find them to be unavailing.
Lahtinen, Spain and Garry, JJ., concur. Ordered that the judgment is affirmed.