| People v Blackmon |
| 2014 NY Slip Op 08064 [122 AD3d 1071] |
| November 20, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJesse Blackmon, Appellant. |
Aaron A. Louridas, Delmar, for appellant.
Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Franklin County (Main Jr.,J.), rendered March 29, 2012, convicting defendant upon his plea of guilty of the crimeof criminal sale of a controlled substance in the fourth degree.
In satisfaction of a two-count indictment, defendant pleaded guilty to criminal sale ofa controlled substance in the fourth degree and waived his right to appeal. In accord withthe plea agreement, he was sentenced as a second felony offender to three years in prison,to be followed by three years of postrelease supervision. Defendant appeals.
Initially, we note that, although defendant waived his right to appeal, his waiver isinvalid as he was not advised that the waiver was separate and distinct from the otherrights that he was forfeiting by pleading guilty (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Moyett, 7 NY3d892, 892-893 [2006]; People v Hill, 118 AD3d 1191, 1192 [2014]). Turning tohis substantive contentions, defendant asserts that his guilty plea was not knowing,voluntary and intelligent. Although defendant failed to preserve this claim by making anappropriate postallocution motion (see People v Vandemark, 117 AD3d 1339, 1340 [2014],lv denied 24 NY3d 965 [2014]), we are required to examine further, as he arguesthat the narrow exception to the preservation requirement was triggered by his statementsin the course of the plea colloquy negating an essential element of the crime to which hepleaded guilty (see People vWorden, 22 NY3d 982, 985 [2013]; People v Lopez, 71 NY2d 662, 666[1988]; People v Zabele, 53AD3d 685, 686 [2008]).
Defendant pleaded guilty to criminal sale of a controlled substance in the fourthdegree (see Penal Law § 220.34). During the plea allocution, herelated that he was pleading guilty "under false pretenses" and stated, "I wasn't sellingnothing, I was bringing it to someone else." County Court responded by advisingdefendant that "[t]he law defines a sale as any transfer, any giving, selling, transferring"and noted that "[i]t doesn't have to be for money, it doesn't have to be for anything ofvalue" (see Penal Law § 220.00 [1]). Defendant thereafter repliedthat he was aware of this and, in response to further inquiry by the court, admitted that hehad engaged in such conduct. Upon review, we find that the court's further inquiries anddefendant's responses were adequate to dispel any doubt as to defendant's understandingof the nature of the charge, and to ensure that his plea was intelligently entered(compare People v Ocasio, 265 AD2d 675, 678 [1999]). Thus, we find theexception inapplicable.
The record of defendant's participation at both the plea proceeding and arraignmentdoes not support his further contention that he was deprived of the effective assistance ofcounsel due to his attorney's failure to request a CPL article 730 competency hearing.Defendant is presumed competent, and a history of mental illness and substance abusedoes not necessarily rebut this presumption (see People v Bennett, 30 AD3d 631, 631 [2006], lvdenied 7 NY3d 809 [2006]; People v Medina, 249 AD2d 694, 694 [1998]).No record evidence suggests that defense counsel's decision was not "a sound defensestrategy," or that defendant was otherwise deprived of meaningful representation (People v Barclay, 1 AD3d705, 707 [2003], lv denied 1 NY3d 567 [2003] [internal quotation marks andcitations omitted]). Defendant's counsel ultimately negotiated a favorable plea agreementthat substantially reduced his sentencing exposure (see People v Leszczynski, 96 AD3d 1162, 1162-1163[2012], lv denied 19 NY3d 998 [2012]). The sentence was imposed in accordwith that agreement and, considering defendant's prior criminal history, we find his claimthat it was harsh and excessive without merit (see People v Sherald, 45 AD3d 973 [2007], lvdenied 10 NY3d 771 [2008]).
Stein, J.P., Rose, Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.