| People v Wheeler |
| 2015 NY Slip Op 04169 [128 AD3d 1177] |
| May 14, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vKristian Wheeler, Appellant. |
Theodore J. Stein, Woodstock, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Rose, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered October 10, 2012, convicting defendant upon his plea of guilty of the crimeof criminal sale of a controlled substance in the third degree.
Defendant was charged in a six-count indictment arising out of three separate salesof crack cocaine. In full satisfaction thereof, he pleaded guilty to criminal sale of acontrolled substance in the third degree with the understanding that he would besentenced as a prior felony offender to an eight-year prison term with three years ofpostrelease supervision. During the plea colloquy, County Court incorrectly informeddefendant that he faced potential sentences of 15 years, rather than the correct maximumterm of 12 years (see Penal Law §§ 220.16 [1]; 220.39 [1]; 119AD3d 1236, 1237 [2014]; compare Penal Law § 70.70 [3] [b] [i]with Penal Law § 70.70 [4] [b] [i]). Defendant was thereaftersentenced pursuant to the terms of the plea agreement. Upon defendant's initial appeal,we rejected his counsel's Anders brief and assigned new counsel to address, at aminimum, County Court's error in informing defendant of the incorrect maximum term ofincarceration (119 AD3d at 1237).
On this appeal, defendant's contention that his plea was not knowing, voluntary andintelligent because County Court erroneously stated his maximum potential terms ofincarceration on the crimes charged is unpreserved for our review, as the record onappeal does not reflect that defendant made an appropriate postallocution motion (see People v Royce, 122 AD3d1008, 1009 [2014]; Peoplev Smith, 49 AD3d 1032, 1033 [2008], lv denied 10 NY3d 939 [2008]).Further, after reviewing the record, we decline to exercise our interest of justicejurisdiction in light of defendant's extensive experience with the criminal justice system,the lack of any indication that he relied on the erroneous information in accepting theplea agreement and the lack of any other evidence that the plea was involuntary (seePeople v Smith, 49 AD3d at 1033; People v Robles, 5 AD3d 180, 180-181 [2004], lvdenied 2 NY3d 805 [2004]; see also [*2]People v Ortiz, 69AD3d 966, 967-968 [2010]).
Peters, P.J., Egan Jr. and Lynch, JJ., concur. Ordered that the judgment isaffirmed.