| People v Mack |
| 2016 NY Slip Op 04238 [140 AD3d 791] |
| June 1, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Earl Mack, Appellant. |
Lynn W. L. Fahey, New York, NY (Erica Horwitz of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove and JoyceSlevin of counsel; Robert Ho on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Harrington, J., at plea; Ozzi, J., at sentence), rendered April 17, 2013, convicting him ofrobbery in the first degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant pleaded guilty to one count of robbery in the first degree insatisfaction of a 57-count indictment, and received the promised sentence. On appeal, hecontends that because he was misinformed about the minimum sentence to which he wasexposed on certain weapon possession counts, his plea of guilty was not knowing,voluntary, and intelligent.
Whether a plea was knowing, voluntary, and intelligent is dependent upon a numberof factors "including the nature and terms of the agreement, the reasonableness of thebargain, and the age and experience of the accused" (People v Hidalgo, 91 NY2d733, 736 [1998]; see People vConceicao, 26 NY3d 375, 383-384 [2015]; People v Garcia, 92 NY2d869, 870 [1998]). "That the defendant allegedly received inaccurate informationregarding his possible sentence exposure is another factor which must be considered bythe court, but it is not, in and of itself, dispositive" (People v Garcia, 92 NY2d869, 870 [1998]; see People v Eschenberg, 275 AD2d 719 [2000]).
At the plea proceeding, defense counsel stated that he had discussed with thedefendant, inter alia, the strength of the People's evidence against him and his sentencingexposure if convicted after trial. Counsel correctly stated that in light of the defendant'scriminal history, if he were convicted of any of the five counts charging robbery in thefirst degree, then he would be sentenced as a persistent violent felony offender, andcounsel accurately represented what those sentences could be (see Penal Law§ 70.08). He also correctly stated that those sentences could be imposed torun consecutive to one another (see Penal Law § 70.25 [1], [2]).However, counsel erroneously stated that the defendant could be sentenced as apersistent violent felony offender on the weapon possession counts (cf. PenalLaw § 70.08). As charged in the subject indictment, the weapon possessioncounts did not constitute violent felony offenses (see Penal Law§ 70.02 [1]), and therefore the defendant could not have been sentenced asa persistent violent felony offender if found guilty on those counts. The Supreme Courtdid not correct counsel's misstatement at the plea [*2]proceeding.
Notwithstanding counsel's misstatement, the record demonstrates that the length ofthe sentence was but one of many elements considered by the defendant before his pleawas accepted. Significantly, the People's evidence against him on the robbery counts wasstrong and included his own inculpatory statements. Counsel accurately informed thedefendant of his sentencing exposure on those more serious counts, as well as the otherviolent felony offenses of which the defendant was charged. On this record, it cannot besaid that the defendant's plea of guilty was not knowing, voluntary, and intelligent(see People v Garcia, 92 NY2d at 870; People v Eschenberg, 275 AD2d719 [2000]).
The defendant's contention that he was deprived of the effective assistance ofcounsel is without merit (see Strickland v Washington, 466 US 668, 694 [1984];People v McGee, 20 NY3d513, 518 [2013]; People v Baldi, 54 NY2d 137, 147 [1981]). Mastro, J.P.,Maltese, Duffy and Brathwaite Nelson, JJ., concur.