| People v Tole |
| 2014 NY Slip Op 04980 [119 AD3d 982] |
| July 3, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 The People of the State of New York, Respondent, vKuidon Tole, Appellant. |
John Ferrara, Monticello, for appellant.
James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), forrespondent.
Devine, J. Appeals (1) from a judgment of the County Court of Sullivan County(LaBuda, J.), rendered January 8, 2013, convicting defendant upon his plea of guilty ofthe crime of attempted promoting prison contraband in the first degree, and (2) from ajudgment of said court, rendered January 8, 2013, convicting defendant upon his plea ofguilty of the crime of criminal possession of a controlled substance in the fifthdegree.
Defendant was originally charged in an indictment with promoting prison contrabandin the first degree. Although County Court dismissed the indictment on the basis thatdefendant had not received proper grand jury notice, this Court reversed that order andordered that the indictment be reinstated (94 AD3d 1334, 1334-1335 [2012], lvdenied 19 NY3d 968 [2012]). Following reinstatement of the indictment, but prior toits resolution, police officers responding to a domestic dispute at defendant's apartmentfound over 500 milligrams of cocaine. Defendant ultimately waived indictment andagreed to be prosecuted on a charge of criminal possession of a controlled substance inthe fifth degree by superior court information.
Defendant then pleaded guilty to attempted promoting prison contraband in the firstdegree and criminal possession of a controlled substance in the fifth degree insatisfaction of the indictment and superior court information and waived his right toappeal both convictions. [*2]Pursuant to the pleaagreement, defendant was to be sentenced to concurrent prison terms of1
Initially, although County Court should have more thoroughly distinguished the rightto appeal from the rights forfeited upon pleading guilty, the detailed written waivers ofthe right to appeal executed by defendant and his counsel acknowledged defendant'sseparate and distinct right to appeal, confirmed that he had discussed the waivers andtheir consequences with counsel and affirmed that he was voluntarily waiving the right.County Court confirmed that defendant understood the waivers and that he did not needany further time to discuss them with counsel. Under these circumstances, the recordreflects that defendant's waiver of the right to appeal his convictions and sentences wasknowing, intelligent and voluntary (see People v Henion, 110 AD3d 1349, 1350 [2013], lvdenied 22 NY3d 1088 [2014]; People v McCaskill, 76 AD3d 751, 752 [2010]; People v Glynn, 73 AD3d1290, 1290-1291 [2010]). In light of his valid appeal waiver, defendant's challengeto County Court's suppression ruling is precluded (see People v Morrison, 106 AD3d 1201, 1202 [2013]; People v Stone, 105 AD3d1094, 1094 [2013]).
Defendant's contention that his guilty plea to attempted promoting prison contrabandin the first degree was not knowing, intelligent and voluntary—which survives hisappeal waiver—is nonetheless unpreserved as the record does not reveal that hemade an appropriate postallocution motion (see People v Smith, 112 AD3d 1232, 1232 [2013], lvdenied 22 NY3d 1203 [2014]; People v Hare, 110 AD3d 1117, 1117 [2013]). Further,while we agree that defendant's statements prior to the plea colloquy that the cell phonein question was not "dangerous contraband" reveal some equivocation as to an essentialelement of the crime to which he later pleaded guilty (see Penal Law§ 205.25 [2]; People v Pagan, 36 AD3d 1163, 1164-1165 [2007]), we aresatisfied that, during the ensuing discussion with County Court, defendant was properlyinformed and understood that, if he went to trial, it would be up to the jury to determinewhether or not the cell phone was dangerous contraband (see People v Green, 119 AD3d 23, 26-27 [2014]). Defendant did not raise the issue thereafter, includingduring the plea colloquy itself, and the record reflects that, following this discussion,defendant knowingly chose to accept a favorable plea deal rather than risk convictionfollowing a trial. Accordingly, inasmuch as the record demonstrates that defendant'sconcerns were clarified and his plea was knowingly, intelligently and voluntarily entered,the narrow exception to the preservation rule is inapplicable (see People v Lopez,71 NY2d 662, 666 [1988]; People v Goodell, 104 AD3d 1026, 1026 [2013], lvdenied 22 NY3d 1138 [2014]; People v Ferro, 101 AD3d 1243, 1244 [2012], lvdenied 20 NY3d 1098 [2013]).
Finally, defendant argues that County Court erred in imposing an enhanced sentence.We agree. Although this issue is not precluded by his appeal waiver, it is unpreservedinasmuch as he failed to object to the enhanced sentence or make an appropriate motion(see People v Lewis, 98AD3d 1186, 1186 [2012]; People v Lindsey, 80 AD3d 1005, 1006 [2011]; People v Donnelly, 80 AD3d797, 798 [2011]; People vMcDermott, 68 AD3d 1453, 1454 [2009]). Despite this failure to preserve theissue, we exercise our interest of justice jurisdiction to take correctiveaction.
[*3] A sentencing court may notimpose an enhanced sentence unless it has informed the defendant of specific conditionsthat the defendant must abide by or risk such enhancement, or give the defendant anopportunity to withdraw his or her plea before the enhanced sentence is imposed (seePeople v Lewis, 98 AD3d at 1186; People v Lindsey, 80 AD3d at 1006; People v Becker, 80 AD3d795, 796 [2011]; People vFisher, 76 AD3d 1122, 1122 [2010]; People v McDermott, 68 AD3d at1454). Here, County Court enhanced defendant's sentence due to defendant's arrest whileon release pending sentencing. However, the record reflects that defendant was neverwarned that County Court would not be bound by its sentencing commitment if he werearrested while out on release.[FN*]Consequently, County Court erred inimposing an enhanced sentence without first providing defendant an opportunity towithdraw his plea (see People v Lewis, 98 AD3d at 1186-1187; People vBecker, 80 AD3d at 796-797; People v McDermott, 68 AD3d at 1454; People v Armstead, 52 AD3d966, 967 [2008]). Accordingly, we vacate defendant's sentence and remit the matterto County Court to impose the agreed-upon sentence or give defendant the option ofwithdrawing his plea before imposing the enhanced sentence (see People vLewis, 98 AD3d at 1187; People v Fisher, 76 AD3d at 1122).
Peters, P.J., Lahtinen, Garry and Rose, JJ., concur. Ordered that the judgments aremodified, as a matter of discretion in the interest of justice, by vacating the sentencesimposed; matters remitted to the County Court of Sullivan County for furtherproceedings not inconsistent with this Court's decision; and, as so modified,affirmed.
Footnote *:Contrary to the People'scontention, defendant's promise to County Court that he would not "get in trouble" if hewere released is not "an explicit and objective" condition that could provide a basis forthe enhancement of defendant's sentence (People v Becker, 80 AD3d at 796).