| People v Halsey |
| 2013 NY Slip Op 05162 [108 AD3d 1123] |
| July 5, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v CaseyJ. Halsey, Appellant. |
—[*1] Casey J. Halsey, defendant-appellant pro se. Donald G. O'Geen, District Attorney, Warsaw (Vincent A. Hemming of counsel), forrespondent.
Appeal from a judgment of the Wyoming County Court (Mark H. Dadd, J.), renderedApril 21, 2011. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a controlled substance in the fifth degree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by vacating the sentence and as modified the judgment is affirmed, and thematter is remitted to Wyoming County Court for further proceedings in accordance withthe following memorandum: On appeal from a judgment convicting him upon his plea ofguilty of criminal possession of a controlled substance in the fifth degree (Penal Law§ 220.06 [1]), defendant contends in his main and pro se supplemental briefs thathe was denied effective assistance of counsel based upon the failure of defense counselto either facilitate his testimony before the grand jury or to move to dismiss theindictment pursuant to CPL 190.50 (5) (c) based upon the alleged violation of his right totestify before the grand jury. That contention "does not survive his guilty plea or hiswaiver of the right to appeal because there was no showing that the plea bargainingprocess was infected by [the] allegedly ineffective assistance or that defendant enteredthe plea because of his attorney['s] allegedly poor performance" (People v Dean, 48 AD3d1244, 1245 [2008], lv denied 10 NY3d 839 [2008] [internal quotation marksomitted]; see People vRuffin, 101 AD3d 1793, 1794 [2012]).
Defendant contends in his main brief that County Court's misstatement of hispossible sentence, in the event that he violated the terms of his conditional discharge, as4½ years of incarceration rather than four years rendered the plea coerced per seand therefore involuntary. Although defendant's contention that his plea was involuntarysurvives his waiver of the right to appeal (see People v Jackson, 85 AD3d 1697, 1698 [2011], lvdenied 17 NY3d 817 [2011]; People v Dunham, 83 AD3d 1423, 1424 [2011], lvdenied 17 NY3d 794 [2011]), he failed to preserve that contention for our review byfailing to move to withdraw the plea or to vacate the judgment of conviction on thatground (see People v Harrison, 4 AD3d 825, 826 [2004], lv denied 2NY3d 740 [2004]). In any event, considering the plea colloquy as a whole, we concludethat the inaccurate information defendant received regarding his possible sentencingexposure did not render the plea involuntary (see [*2]generally People v Garcia, 92 NY2d 869, 870-871[1998]). We have considered the remaining contention in defendant's main brief andconclude that it is unpreserved (see CPL 470.05 [2]) and that, in any event, it iswithout merit.
In his pro se supplemental brief, defendant contends that the court erred insentencing him as a first felony drug offender rather than a second felony drug offender.We agree. Where it is apparent that a defendant has a prior felony conviction, "the Peoplewere required to file a second felony offender statement in accordance with CPL 400.21and, if appropriate, the court was then required to sentence defendant as a second felonyoffender" (People v Griffin,72 AD3d 1496, 1497 [2010]; see People v Scarbrough, 66 NY2d 673, 674[1985], revg on dissenting mem of Boomer, J. 105 AD2d 1107 [1984];People v Martinez, 213 AD2d 1072, 1072 [1995]). " '[I]t is illegal to sentence aknown predicate felon as a first offender' " (Griffin, 72 AD3d at 1497; see People v Stubbs, 96 AD3d1448, 1450 [2012], lv denied 19 NY3d 1001 [2012]; Martinez, 213AD2d at 1072). Here, the People filed a second felony offender statement at the time ofthe indictment, but the court did not sentence defendant as a second felony offender. Wetherefore modify the judgment by vacating the sentence, and we remit the matter toCounty Court for resentencing in compliance with CPL 400.21. Present—Scudder,P.J., Centra, Fahey, Carni and Lindley, JJ.