| People v Chant |
| 2016 NY Slip Op 04544 [140 AD3d 1645] |
| June 10, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vEric Chant, Appellant. |
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of counsel), fordefendant-appellant.
David W. Foley, District Attorney, Mayville (Joseph M. Calimeri of counsel), forrespondent.
Appeal from a judgment of the Chautauqua County Court (John T. Ward, J.),rendered February 11, 2013. The judgment convicted defendant, upon his plea of guilty,of rape in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of rape in the first degree (Penal Law § 130.35 [4]). Defendantcontends that reversal of the judgment and vacatur of the plea are required becauseCounty Court failed to advise him, during the plea allocution, of the specific period ofpostrelease supervision that would be imposed at sentencing, and that preservation of hiscontention is not required. We conclude on this record that defendant was required topreserve his contention inasmuch as he had a reasonable opportunity to challenge thevalidity of his guilty plea on the same ground now advanced on appeal, and thatdefendant failed to preserve his contention for our review because he did not move towithdraw the plea or otherwise object to the imposition of postrelease supervision (see People v Williams, 27NY3d 212, 219-220 [2016]; People v Crowder, 24 NY3d 1134, 1136-1137 [2015]; cf. People v Louree, 8 NY3d541, 545-546 [2007]).
Prior to commencement of the scheduled trial, the parties indicated that the Peoplehad offered a plea bargain in which defendant would plead guilty to rape in the firstdegree, a class B violent felony sex offense (see Penal Law§§ 70.02 [1] [a]; 70.80 [1] [b]; 130.35), in full satisfaction of theindictment, and that defendant would receive the maximum sentence for that crime.Although the prosecutor correctly placed on the record that the maximum term ofimprisonment was 25 years (§ 70.02 [3] [a]), he misstated the applicableperiod of postrelease supervision as 25 years instead of the legal maximum period of 20years (§ 70.45 [2-a] [f]). Without acknowledging that misstatement, defensecounsel indicated that the proposed resolution had been discussed in detail withdefendant, including all consequences of the proposed plea bargain, and that defendantfully understood such consequences and was prepared to plead guilty. Defendant statedthat he understood everything that had been stated, and the court proceeded with a pleaallocution in which it did not mention postrelease supervision. Immediately following theallocution, the court set a sentencing date and, in discussing with defense counsel itswillingness to adjourn that date if necessary to permit additional time for preparation, thecourt confirmed that the plea agreement involved a sentence of 25 years of imprisonmentwith 20 years of postrelease supervision. Defense counsel and the prosecutor both agreedwith the court's recitation of the agreed-upon sentence, and neither defendant nor defensecounsel objected to the period of postrelease supervision. At an appearance two monthslater, the prosecutor agreed with the court's statement that there was an agreed-uponsentence in place, but nevertheless did not object to defense counsel's request for anadjournment to further prepare for sentencing. At the outset of the sentencing proceedingmore than two months after the [*2]appearance, theprosecutor stated that the agreement involved a sentence of 25 years of imprisonment,but misstated the period of postrelease supervision as two years, which was below thelegal minimum period of five years (§ 70.45 [2-a] [f]). Defense counsel didnot address that misstatement, but nonetheless indicated that he had discussed withdefendant all of the collateral consequences of the plea as well as the sentence. The courtthereafter imposed the agreed-upon sentence of 25 years of imprisonment with 20 yearsof postrelease supervision.
Where, as here, "a defect in a plea allocution is clear on the face of the record andimplicates due process, the defendant nonetheless must preserve his or her claim that thedefect made the plea involuntary unless the defendant has no practical ability to do so"(Williams, 27 NY3d at 221-222). Although the prosecutor initially misstated theperiod of postrelease supervision prior to the plea allocution and the court failed tomention postrelease supervision during the allocution, defendant was aware that thesentence included a postrelease supervision component at the time of the allocution, thecourt immediately thereafter confirmed the correct agreed-upon sentence, and neitherdefendant nor defense counsel objected to the period of postrelease supervision orotherwise indicated that there was any misunderstanding with regard to its length. Inaddition, while postrelease supervision was not specifically mentioned at the subsequentappearance, there was no objection at that time to the plea or any component of theagreed-upon sentence. The fact that the prosecutor's articulation of the postreleasesupervision period at the outset of the sentencing proceeding did not conform with theparties' previously-expressed understanding of the agreed-upon period provided thedefense with another opportunity to preserve defendant's current challenge to his pleaand seek clarification of the matter (see id. at 222-223). We thus conclude that,"[b]ecause defendant had ample opportunity to raise an objection to the [postreleasesupervision] component prior to and during these proceedings, defendant was required topreserve his claim" (Crowder, 24 NY3d at 1136-1137; see People v Murray, 15 NY3d725, 726-727 [2010]). "By failing to seize upon these opportunities to object or seekadditional pertinent information, defense counsel failed to preserve defendant's claim forappellate review" (Williams, 27 NY3d at 223; see Murray, 15 NY3d at727). We decline to exercise our power to review defendant's contention as a matter ofdiscretion in the interest of justice (see CPL 470.15 [3] [c]).
We further conclude that defendant, by pleading guilty, forfeited any challenge to thealleged Brady violation (see People v Chinn, 104 AD3d 1167, 1168 [2013], lvdenied 21 NY3d 1014 [2013]). Finally, defendant's sentence is not unduly harsh orsevere. Present—Peradotto, J.P., Carni, Lindley, Curran and Troutman, JJ.