| People v Donaldson |
| 2014 NY Slip Op 03089 [117 AD3d 1467] |
| May 2, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vHenry H. Donaldson, Jr., Also Known as Puddin, Appellant. |
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of counsel), fordefendant-appellant.
Lori Pettit Rieman, District Attorney, Little Valley (Amber L. Kerling of counsel),for respondent.
Appeal from a judgment of the Cattaraugus County Court (M. William Boller, A.J.),rendered February 27, 2012. The judgment convicted defendant, upon his plea of guilty,of attempted criminal sale of a controlled substance in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of attempted criminal sale of a controlled substance in the fourth degree (PenalLaw §§ 110.00, 220.34 [1]). Initially, we agree with defendant that hiswaiver of the right to appeal is invalid because "the minimal inquiry made by CountyCourt was insufficient to establish that the court engage[d] the defendant in an adequatecolloquy to ensure that the waiver of the right to appeal was a knowing and voluntarychoice" (People v Box, 96AD3d 1570, 1571 [2012], lv denied 19 NY3d 1024 [2012] [internalquotation marks omitted]; seePeople v Doxey, 112 AD3d 1364, 1364-1365 [2013]; People v Jones, 107 AD3d1589, 1589-1590 [2013], lv denied 21 NY3d 1075 [2013]), and because thecourt "improperly conflated the rights automatically forfeited by operation of law as theconsequence of a guilty plea with those rights voluntarily relinquished as theconsequence of a waiver of the right to appeal" (People v Daniels, 68 AD3d 1711, 1712 [2009], lvdenied 14 NY3d 887 [2010]).
We reject defendant's further contention that the court violated CPL 430.10 inresentencing him as a second felony offender. Contrary to defendant's contention," 'the trial court had the inherent power to correct an illegal sentence' over thedefendant's objection where[, as here,] the corrected sentence fell within the rangeinitially stated by the court" (People v DeValle, 94 NY2d 870, 871-872 [2000],quoting People v Williams, 87 NY2d 1014, 1015 [1996], rearg denied 89NY2d 861 [1996]; see People vCoble, 17 AD3d 1165, 1165-1166 [2005], lv denied 5 NY3d 787[2005]). The initial sentence was illegal because the information available to the courtand the parties established that defendant was a second felony drug offender, and thecourt therefore could not impose a one-year period of postrelease supervision (seePenal Law §§ 70.45 [2] [d]; 70.70 [3] [b] [ii]). Consequently, thePeople were required to file a predicate felony statement and the court, upon concludingthat he had such a conviction, was required to sentence defendant as a second felonydrug offender (see generallyPeople v Stubbs, 96 AD3d 1448, 1450 [2012], lv denied 19 [*2]NY3d 1001 [2012]; People v Griffin, 72 AD3d 1496, 1497 [2010]).
Finally, to the extent that defendant's contention that he was denied effectiveassistance of counsel at sentencing survives his guilty plea, we conclude that it lacksmerit (see People vLaCroce, 83 AD3d 1388, 1388 [2011], lv denied 17 NY3d 807 [2011]).Defendant "receive[d] an advantageous plea and nothing in the record casts doubt on theapparent effectiveness of counsel" (People v Ford, 86 NY2d 397, 404[1995]).
We have considered defendant's remaining contentions and conclude that they lackmerit. Present—Scudder, P.J., Smith, Carni, Lindley and Whalen, JJ.