| People v Brown |
| 2015 NY Slip Op 03065 [127 AD3d 498] |
| April 9, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Larry Brown, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Claudia B. Flores ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Yuval Simchi-Levi of counsel),for respondent.
Judgment, Supreme Court, New York County (Patricia Nunez, J., at diversionproceeding; Lewis Bart Stone, J., at plea and sentencing), rendered October 15, 2012,convicting defendant of criminal possession of stolen property in the third degree, andsentencing him to a term of 2
The court properly denied defendant's motion to withdraw his guilty plea. The recordestablishes that the plea was knowingly, intelligently and voluntarily entered (seePeople v Fiumefreddo, 82 NY2d 536 [1993]). Defendant's claim that he was misledabout his prospects of receiving judicial diversion under CPL 216.05 is refuted by therecord. The plea court explained to defendant that diversion was not guaranteed, it madeno representations about the likelihood of defendant's acceptance for diversion, and itspecified the sentence defendant would receive in the event of his rejection. Defendant'sclaim of innocence was refuted by the thorough factual allocution conducted at the timeof the plea.
Furthermore, the plea was not induced by an illegal or unfulfilled sentence promise.Defendant received the precise sentence he was warned to expect in the absence ofdiversion, and he has not demonstrated how he was prejudiced by being sentenced inaccordance with his plea.
Defendant made a valid waiver of his right to appeal (see People v Lopez, 6 NY3d248 [2006]). Regardless of whether defendant validly waived his right to appeal, orwhether the waiver forecloses review of the postplea denial of judicial diversion, we findthat the diversion court properly exercised its discretion in determining that defendantwas not a suitable candidate (seePeople v O'Keefe, 112 AD3d 524 [1st Dept 2013], lv denied 23 NY3d1023 [2014]). Concur—Tom, J.P., Sweeny, Renwick and Andrias, JJ.