| People v Landry |
| 2015 NY Slip Op 07364 [132 AD3d 1351] |
| October 9, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vKerry Landry, Appellant. (Appeal No. 1.) |
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Romana A. Lavalas of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Jeffrey R. Merrill, A.J.),rendered May 1, 2012. The judgment convicted defendant, upon his plea of guilty, ofburglary in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him,upon his guilty plea, of burglary in the third degree (Penal Law § 140.20)and, in appeal No. 2, he appeals from a judgment convicting him, upon his guilty plea, ofcriminal possession of a forged instrument in the second degree (§ 170.25).Defendant contends in each appeal that his respective pleas were involuntarily enteredbecause County Court failed to advise him of all of the constitutional rights he would beforfeiting upon pleading guilty (see Boykin v Alabama, 395 US 238, 243 [1969];People v Tyrell, 22 NY3d359, 361 [2013]). By failing to move to withdraw the respective pleas or to vacatethe respective judgments of conviction, however, defendant failed to preserve hiscontention for our review (see CPL 470.05 [2]; People v Watkins, 77 AD3d1403, 1403 [2010], lv denied 15 NY3d 956 [2010]), and the "narrowexception" to the preservation rule does not apply because defendant did not say anythingduring the respective plea colloquies that cast significant doubt on his guilt or otherwisecalled into question the voluntariness of his pleas (People v Lopez, 71 NY2d 662,666 [1988]). Although the Court of Appeals in Tyrell vacated a guilty plea basedon an unpreserved Boykins claim, the defendant in that case was sentencedimmediately following his plea and thus did not have an opportunity to move towithdraw his plea (see Tyrell, 22 NY3d at 364). Here, in contrast, defendant wassentenced more than two months after he entered his guilty pleas, thus affording himample time to bring a motion.
We reject defendant's further contention in both appeals that the court abused itsdiscretion in terminating him from a drug treatment program after he admittedly violatedthe conditions of the program. "Courts are afforded great deference in making judicialdiversion determinations, and we perceive no abuse of discretion here" (People v Williams, 105 AD3d1428, 1428 [2013], lv denied 21 NY3d 1021 [2013]; see CPL 216.05[9] [c]; People v Dawley, 96AD3d 1108, 1109 [2012], lv denied 19 NY3d 1025 [2012]). Finally,considering defendant's extensive criminal record and the multiple opportunities he hashad to obtain substance abuse treatment, we decline to modify his sentence as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [b]).Present—Centra, J.P., Peradotto, Lindley, Whalen and DeJoseph, JJ.