| People v Long |
| 2014 NY Slip Op 03879 [117 AD3d 1326] |
| May 29, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vClaude Long, Also Known as Dollar, Appellant. |
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant, and appellant pro se.
Eric T. Schneiderman, Attorney General, New York City (Jodi A. Danzig ofcounsel), for respondent.
Garry, J. Appeal from a judgment of the County Court of Albany County (Breslin,J.), rendered February 22, 2012, convicting defendant upon his plea of guilty of the crimeof criminal possession of a controlled substance in the third degree.
In conjunction with a 278-count indictment accusing more than 30 people ofinvolvement in an enterprise to distribute and sell cocaine, defendant was charged in 10counts of the indictment with conspiracy in the second degree, criminal possession of acontrolled substance in the third degree (two counts), criminal possession of a controlledsubstance in the fourth degree, attempted criminal possession of a controlled substance inthe third degree (five counts) and attempted criminal possession of a controlled substancein the fourth degree. Thereafter, he entered into a plea agreement pursuant to which hewould plead guilty to one count of criminal possession of a controlled substance in thethird degree, waive his right to appeal and promise cooperation against his codefendantsin exchange for a prison sentence of six years followed by three years of postreleasesupervision. Subsequent to his plea, the Organized Crime Task Force prosecuting thecase informed County Court that defendant had failed to fulfill his obligation tocooperate under the plea agreement. Accordingly, the court found the agreement not tobe enforceable and thereafter sentenced defendant as a second felony offender [*2]to a prison term of 10 years followed by three years ofpostrelease supervision. Defendant appeals.
We affirm. Initially, we are unpersuaded by defendant's challenge to the validity ofhis appeal waiver; County Court adequately informed him that his right to appeal wasseparate from the other rights automatically forfeited upon a guilty plea, the writtenappeal waiver he executed in open court similarly informed him of that fact, and he wasprovided with ample time to confer with counsel to ensure that he fully understood theimpact of his waiver (see Peoplev Campbell, 114 AD3d 996, 997 [2014]; People v Osgood, 111 AD3d 1029, 1030 [2013], lvdenied 22 NY3d 1089 [2014]). Accordingly, defendant's challenge to the sufficiencyof his plea is foreclosed by his valid waiver of appeal (see People v Osgood, 111AD3d at 1030; People vDurham, 110 AD3d 1145, 1145 [2013]). While defendant's contention that hisguilty plea was not knowing, voluntary and intelligent survives his appeal waiver, it hasnot been preserved for our review, as the record before us does not indicate that hemoved to withdraw his plea (seePeople v Monk, 113 AD3d 999, 1000 [2014]; People v Smith, 112 AD3d1232, 1232 [2013]). Moreover, the narrow exception to the preservation rule is notapplicable as defendant made no statements during the plea colloquy that called intoquestion either his guilt or the voluntariness of his plea (see People v Brabham, 112AD3d 1066, 1067 [2013]; People v Bressard, 112 AD3d 988, 988-989 [2013], lvdenied 22 NY3d 1137 [2014]).
Turning to defendant's contentions with regard to his sentence, we are unconvincedthat County Court imposed the enhanced sentence without making an adequate inquiryinto whether or not defendant complied with the cooperation requirement of the pleaagreement (see People vPaneto, 112 AD3d 1230, 1231 [2013]; People v Crowder, 110 AD3d 1384, 1385-1386 [2013],lv granted 22 NY3d 1155 [2014]). While a valid appeal waiver typicallyprecludes a challenge to the severity of even an enhanced sentence, the waiver does notforeclose such challenge where, as here, a defendant has not been advised of themaximum potential sentence at the time of the plea (see People v Powers, 302AD2d 685, 686 [2003]; People v Espino, 279 AD2d 798, 800 n [2001]; see generally People v Edie,100 AD3d 1262, 1262 [2012]). Nonetheless upon review, we discern no abuse ofdiscretion nor extraordinary circumstances that would warrant a reduction of defendant'ssentence in the interest of justice (see People v Paneto, 112 AD3d 1230, 1231 [2013];People v Bressard, 112 AD3d at 989).
We have examined defendant's remaining contentions, including those raised in hispro se brief, and have found them to be without merit.
Peters, P.J., Lahtinen, McCarthy and Devine, JJ., concur. Ordered that the judgmentis affirmed.