| People v White |
| 2014 NY Slip Op 07699 [122 AD3d 1005] |
| November 13, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vDavid J. White, Appellant. |
Robert A. Gouldin, Oneonta, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Rashell Khan, Law Intern), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Chemung County (Hayden,J.), rendered October 10, 2012, convicting defendant upon his plea of guilty of the crimeof criminal possession of a controlled substance in the third degree.
Defendant was charged in an indictment with two counts of criminal possession of acontrolled substance in the third degree following an incident in which police recoveredcocaine, as well as other drugs and related items, from a hotel room where he wasstaying. Defense counsel moved to suppress the evidence gathered as a result of thesearch of the hotel room. There were a number of adjournments of the suppressionhearing and, before it was conducted, defendant pleaded guilty to one count of criminalpossession of a controlled substance in the third degree in satisfaction of the indictment.Consistent with the plea agreement, he was sentenced to two years in prison to befollowed by two years of postrelease supervision. He now appeals.
Defendant argues that he was denied the effective assistance of counsel by hisattorney's failure to proceed with the suppression hearing prior to defendant's entry of aguilty plea. To the extent that this claim has a bearing upon the voluntariness ofdefendant's plea, we find that it is unpreserved due to defendant's failure to make anappropriate postallocution motion (see People v Smith, 119 AD3d 1088, 1089 [2014]; People v Flake, 95 AD3d1371, 1372 [2012], lv denied [*2]19 NY3d973 [2012]; People v Stevenson, 58 AD3d 948, 949 [2009], lv denied 12NY3d 860 [2009]). As for defendant's claim that his sentence is harsh and excessive, wefind it to be unpersuasive. Defendant could have received a determinate sentence ofanywhere from one to nine years in prison for the crime to which he pleaded guilty(see Penal Law § 70.70 [2] [a] [i]). He received two years in prisoninstead and this was the sentence agreed to under the terms of the plea agreement.Therefore, we find no extraordinary circumstances nor any abuse of discretionwarranting a reduction of the sentence in the interest of justice (see People v Lawal, 73 AD3d1287, 1290 [2010]; Peoplev Muniz, 12 AD3d 937, 939 [2004]).
Lahtinen, J.P., McCarthy, Rose and Lynch, JJ., concur. Ordered that the judgment isaffirmed.