| People v Richardson |
| 2015 NY Slip Op 07305 [132 AD3d 1022] |
| October 8, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Seddy Richardson, Appellant. |
Gordon Eddy, Albany, for appellant.
J. Anthony Jordon, District Attorney, Fort Edward (Sara E. Fischer of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered August 7, 2014, convicting defendant upon his plea of guiltyof the crime of attempted promoting prison contraband in the first degree.
Defendant, an inmate, was found with drugs concealed on his body and wasthereafter charged in a three-count indictment with promoting prison contraband in thefirst degree and related charges. In satisfaction thereof, defendant pleaded guilty to thereduced charge of attempted promoting prison contraband in the first degree. As agreed,he was sentenced, as an admitted second felony offender, to a prison term of1
Defendant contends that his guilty plea was not knowing, voluntary and intelligent inthat County Court misadvised him regarding the consequences that his guilty plea mighthave on potential enhanced sentencing for a felony he may commit in the future. Thisclaim is unpreserved, however, as the record does not reflect that defendant made anappropriate postallocution motion to withdraw his plea (see People v Wheeler, 128AD3d 1177, 1178 [2015]). Nor is the narrow exception to the preservationrequirement applicable as defendant made no statements during the plea allocution thatnegated an element of the crime or otherwise called into doubt his guilt or thevoluntariness of his plea (see People v Lopez, 71 NY2d 662, 666 [1988]). In anyevent, County Court advised defendant that, if he pleaded guilty, he would "be known asa prior felony offender in the future" and that if he were convicted of another felony"within the next [10] years" the "sentence would include incarceration [in] state prison."The [*2]court was not required to explain that incalculating the 10-year period, periods of incarceration would be excluded, and thecourt's comments did not erroneously suggest that enhanced sentencing would only bepossible for the next 10 consecutive years (see Penal Law § 70.06[1] [b] [v]). Moreover, "defendant's eligibility for an enhanced sentence upon ahypothetical future conviction is merely a 'collateral consequence' of a plea of guilty thatthe defendant need not be advised of in order for the guilty plea to be deemed fullyinformed" (People vAugust, 33 AD3d 1046, 1050 [2006], lv denied 8 NY3d 878 [2007];see People v McGrath, 43 NY2d 803, 804 [1977]; People v Brown, 68 AD3d1150, 1151 [2009]; Peoplev Folk, 43 AD3d 1229, 1230 [2007], lv denied 9 NY3d 1033[2008]).
Garry, J.P., Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.