| People v Martin |
| 2015 NY Slip Op 01199 [125 AD3d 1054] |
| February 11, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vCorey A. Martin, Appellant. |
Marcy I. Flores, Warrensburg, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Sara E. Fischer of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered March 10, 2011, which convicted defendant upon his plea ofguilty of the crime of criminal sale of a controlled substance in the third degree.
After the jury was sworn at the start of trial, defendant entered a guilty plea tocriminal sale of a controlled substance in the third degree and waived his right to appeal.The plea satisfied a four-count indictment charging defendant with the sale of cocaine ontwo occasions in 2010. He was sentenced, as agreed, to a prison term of4
Defendant's argument that his guilty plea was not voluntary and that his allocutionwas not factually sufficient were not preserved for review in this Court by apostallocution motion to withdraw the plea (see People v Lopez, 71 NY2d 662,665-666 [1988]; People vGlynn, 73 AD3d 1290, 1291 [2010]; see also People v Tyrell, 22 NY3d 359, 363-364 [2013]).Defendant made no statements during the plea allocution that cast doubt on thevoluntariness of his plea or his guilt so as to implicate the exception to the preservationrequirement (see id.). In fact, when asked by County Court at sentencing,defendant specifically declined an opportunity to withdraw his plea. In any event, therecord establishes the knowing, voluntary and intelligent nature of his plea (seePeople v Tyrell, 22 NY3d at 365; People v Fiumefreddo, 82 NY2d 536, 543[1993]).
[*2] Next, defendant argues thatCounty Court's failure to read or consider his 17-page pro se submission put forth atsentencing requires that his plea be vacated. Given that defendant was represented bycounsel and was not entitled to hybrid representation, we do not find that the courtabused its discretion by not entertaining his pro se submission before imposing sentence(see People v Rodriguez, 95 NY2d 497, 500-502 [2000]; People v Alsaifullah, 96 AD3d1103, 1103 [2012], lv denied 19 NY3d 994 [2012]),[FN*] particularly where he did not request anadjournment of sentencing or the removal of counsel. We find that the court properlyproceeded to sentence defendant, having ascertained that he did not wish to withdraw hisguilty plea. Defendant's contention that the bargained-for sentence should be reduced inthe interest of justice is foreclosed by his valid and unchallenged waiver of appeal (see People v Lopez, 6 NY3d248, 256 [2006]; comparePeople v Elmer, 19 NY3d 501, 510 [2012]; People v Bradshaw, 18 NY3d 257, 264 [2011]).Defendant's remaining claims similarly lack merit.
McCarthy, J.P., Rose and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant's submission,which raises numerous issues and contains documentary attachments, is designated asmade "IN SUPPORT OF 28 USC § 2254 (a)," a habeas corpus provision.County Court subsequently issued a letter decision dated April 21, 2011 denying therequested relief, which the court noted was "not clear." No appeal was taken therefrom,and that matter is not before this Court.