| People v Feliciano |
| 2013 NY Slip Op 05249 [108 AD3d 880] |
| July 11, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v EfrainJ. Feliciano, 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 (Williams,J.), rendered October 14, 2011, convicting defendant upon his plea of guilty of the crimeof criminal sale of a controlled substance in the third degree.
In full satisfaction of a four-count indictment and other pending charges, defendantpleaded guilty to one count of criminal sale of a controlled substance in the third degree.Pursuant to the terms of the plea agreement, defendant was sentenced, as a second felonydrug offender with a prior violent felony conviction,[FN1]to eight years in prison followed by three years of postrelease supervision, [*2]along with $100 in restitution.
Although defendant argues on appeal that County Court coerced him into pleadingguilty by, among other things, making a misstatement concerning his sentence exposureand mentioning its need to "move cases quickly," the absence of proof in the recordbefore us that he moved to withdraw his guilty plea or vacate the judgment of convictionrenders these issues unpreserved for appellate review (see People v Seuffert, 104AD3d 1021, 1021 [2013]; People v Good, 83 AD3d 1124, 1125 [2011], lvdenied 17 NY3d 816 [2011]). Moreover, defendant did not make any statements inthe course of the plea allocution that "called into question the voluntariness of his plea soas to trigger the exception to the preservation requirement" (People v Good, 83AD3d at 1125; see People v Lopez, 71 NY2d 662, 666 [1988]).
Defendant also asserts that he did not receive meaningful representation because,among other things, his counsel failed to object to County Court's misstatementconcerning his sentencing status. He also alleges that counsel failed to obtain or reviewlaboratory reports confirming that the cocaine he admitted selling was, in fact, acontrolled substance. Nonetheless, even assuming, arguendo, that these "ineffectiveassistance of counsel claim[s] impact[ ] upon the voluntariness of [defendant's] plea. . . , this issue is—absent record evidence of an appropriatepostallocution motion—unpreserved for our review" (People v Lazore, 102 AD3d1017, 1017-1018 [2013]; see People v Walton, 101 AD3d 1489, 1490 [2012], lvdenied 20 NY3d 1105 [2013]; People v Newman, 99 AD3d 1107, 1108 [2012]). Were weto reach the issue, we would conclude that defendant received meaningful representation(see People v Bean, 102AD3d 1062, 1063 [2013]).
Turning to defendant's various contentions alleging violations of CPL 400.21, wenote that defendant's failure to raise before County Court his current argument that thepredicate felony statement was facially insufficient renders this claim unpreserved for ourreview (see People v Kelly,65 AD3d 886, 889 [2009], lv denied 13 NY3d 860 [2009]; see alsoPeople v Walton, 101 AD3d at 1490; People v Evans 88 AD3d 1029, 1030 [2011], lvdenied 18 NY3d 858 [2011]). In any event, any errors with respect to the content ofthe predicate statement were harmless given that all the appropriate information was setforth on the record (see People v Bouyea, 64 NY2d 1140, 1142 [1985]). Nor diddefendant object to the People's error in describing to the court the Penal Law sectionapplicable to his predicate violent felony conviction. There is no dispute that, in 2001,defendant was convicted of criminal possession of a weapon in the third degree pursuantto Penal Law former § 265.02 (4), a class D violent felony.[FN2]However, in 2006, the Legislature repealed and "transferred that crime" to a different[*3]statute, namely, criminal possession of a weapon inthe second degree pursuant to Penal Law § 265.03 (3) (William C. Donnino,Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law §265.00 at 413; see L 2006, ch 742, § 1). Even though the Peopleerroneously presented the Penal Law § 265.03 (3) citation to the court, the correctinformation was available in defendant's rap sheet and there was no objection registered.Given these circumstances, including defendant's unequivocal admissions regarding hisprior violent felony conviction, we cannot conclude that resentencing is required (seePeople v Bouyea, 64 NY2d at 1142).
Finally, we have reviewed defendant's claim that his negotiated sentence is harsh andexcessive and, considering his criminal history, find no extraordinary circumstances or anabuse of discretion (see People v Bean, 102 AD3d at 1063; People v Williams, 101 AD3d1174, 1174 [2012]).
Stein, Spain and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Although the recorddiscloses that, at sentencing, County Court mistakenly referred to defendant as a secondviolent felony offender, this passing error does not require that an otherwise legalsentence be vacated (seegenerally People v Leszczynski, 96 AD3d 1162, 1163 n 2 [2012], lvdenied 19 NY3d 998 [2012]). Significantly, the record confirms that this was a meremisstatement and defendant's plea and sentence properly reflected his status as a secondfelony drug offender with a prior violent felony conviction (see Penal Law§ 70.70 [4] [b] [i]). Nevertheless, inasmuch as the amended uniform sentence andcommitment sheet incorrectly contains a notation indicating that defendant wassentenced as a second violent felony offender—instead of as a second felony drugoffender with a prior violent felony conviction—"it must be amended accordingly"(People v Vasavada, 93AD3d 893, 894 [2012], lv denied 19 NY3d 978 [2012]; see People v Anderson, 99AD3d 1034, 1035 [2012], lv denied 20 NY3d 1009 [2013]).
Footnote 2: There was also noobjection made to the People's error in describing this prior violent felony conviction as"criminal possession of a loaded firearm in the third degree."