| People v Copes |
| 2016 NY Slip Op 08783 [145 AD3d 1639] |
| December 23, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vBrett E. Copes, Appellant. |
Charles A. Marangola, Moravia, for defendant-appellant.
Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel),for respondent.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, A.J.),rendered July 7, 2015. The judgment convicted defendant, upon his plea of guilty, ofattempted criminal possession of a controlled substance in the third degree and criminallyusing drug paraphernalia in the second 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 attempted criminal possession of a controlled substance in the third degree(Penal Law §§ 110.00, 220.16 [1]) and criminally using drugparaphernalia in the second degree (§ 220.50 [3]). Defendant does notchallenge the validity of his waiver of the right to appeal, and his valid waiverencompasses his contention that the sentence is unduly harsh and severe (see People v Ruffin, 101 AD3d1793, 1793 [2012], lv denied 21 NY3d 1019 [2013]; People vFoster, 281 AD2d 902, 902 [2001], lv denied 96 NY2d 862 [2001]; see generally People v Lopez,6 NY3d 248, 256 [2006]).
Defendant further contends that the court violated the terms of the plea agreement byfailing to impose a sentence of parole supervision pursuant to CPL 410.91. Although thatcontention implicates the voluntariness of defendant's guilty plea and therefore surviveshis waiver of the right to appeal (see People v Brady, 122 AD3d 1009, 1010 [2014], lvdenied 25 NY3d 1160 [2015]), we conclude that it is without merit. The recordestablishes that the court did not promise defendant a sentence of parole supervision, butmerely stated that it was willing to impose such a sentence if defendant was eligible for it(see People v Hernandez, 62AD3d 1095, 1097 [2009], lv denied 13 NY3d 745 [2009]; People v Carlton, 2 AD3d1353, 1354 [2003], lv denied 1 NY3d 625 [2004]; see also People v Hardy, 32AD3d 1317, 1318 [2006], lv denied 7 NY3d 925 [2006]). Inasmuch asdefendant's prior violent felony conviction rendered him ineligible for a sentence ofparole supervision (see CPL 410.91 [2]), "there was no . . .unfulfilled sentencing promise" (Carlton, 2 AD3d at 1354; see People v Tallman, 92AD3d 1082, 1083 [2012], lv denied 20 NY3d 1065 [2013]). To the extentthat defendant contends that the attorneys and the court assured him that he would beeligible for a parole supervision sentence, that contention is belied by hisacknowledgment during the plea colloquy that no off-the-record promises had been madeto induce him to plead guilty (see People v Sanchez, 184 AD2d 537, 538 [1992],lv denied 80 NY2d 909 [1992]; see also Brady, 122 AD3d at 1010-1011).Present—Whalen, P.J., Smith, Carni, DeJoseph and Curran, JJ.