People v Weldon

2017 NY Slip Op 07007 [154 AD3d 1009]

October 5, 2017

Appellate Division, Third Department

As corrected through Wednesday, November 29, 2017

[*1]

The People of the State of New York, Respondent, v JesseeWeldon, Appellant.

Noreen McCarthy, Keene Valley, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Timothy Blatchley of counsel), forrespondent.

McCarthy, J. Appeal from a judgment of the County Court of Clinton County (McGill, J.),rendered October 10, 2014, convicting defendant upon his plea of guilty of the crime ofattempted promoting prison contraband in the first degree (two counts).

In satisfaction of a four-count indictment, defendant pleaded guilty to two counts of thereduced charge of attempted promoting prison contraband in the first degree and waived his rightto appeal. Pursuant to the terms of the plea agreement, defendant was to be sentenced, as asecond felony offender, to concurrent prison terms of 11/2 to 3 years. Afterdefendant violated County Court's Parker admonishment by being arrested while awaitingsentencing, the plea agreement was renegotiated to the extent that defendant retained his right toappeal and would be sentenced, as a second felony offender, to concurrent prison terms of 2 to 4years. County Court imposed the agreed-upon sentence, and defendant appeals.

Defendant contends that his plea was not knowingly, voluntarily and intelligently enteredbecause he was unaware that withdrawal of his pending Huntley motion was a conditionof the plea agreement. Contrary to defendant's contention, this was not a condition, but rather aconsequence, of the plea. By pleading guilty while the motion was pending or before a hearingwas held or a decision rendered, defendant forfeited his claims related to that motion (see People v Carlton, 120 AD3d1443, 1444 [2014], lv denied 25 NY3d 1070 [2015]; People v Straight, 106 AD3d 1190,1191 [2013]; People v Whitted, 12AD3d 840, 841 [2004], lv denied 4 NY3d 769 [2005]). "That [defendant] may havebelieved his plea would not result in such forfeiture is [*2]irrelevant, because, even if communicated to the court, a subjectivebelief cannot permit evasion of what otherwise would be the consequences of the plea"(People v Fernandez, 67 NY2d 686, 688 [1986]). Furthermore, defendant's challenge tothe knowing, voluntary and intelligent nature of the plea is unpreserved as the record reflects thathe made no postallocution motion despite the opportunity to do so, and a review of the recorddoes not reflect that the narrow exception to the preservation rule is applicable (see People v Williams, 145 AD3d1188, 1190-1191 [2016], lv denied 29 NY3d 1002 [2017]). In any event, were we toconsider the issue, we would find that County Court advised defendant of the consequences ofhis plea with regard to any motions, and the record does not otherwise demonstrate that his pleawas not knowingly, voluntarily and intelligently entered.

Defendant's contention that he was not provided an opportunity to speak on his behalf at thetime of sentencing, in violation of CPL 380.50, is not preserved as he failed to object at that time(see People v Green, 54 NY2d 878, 880 [1981]; People v Cianfarani, 81 AD3d 998, 999 [2011]). In any event, werewe to consider the issue, we would find it to be without merit as the record reflects that there wassubstantial compliance with that statute (see People v McClain, 35 NY2d 483, 491[1974]). To the extent that defendant contends that he received ineffective assistance of counseland that the sentence is harsh and excessive, we find such issues to be without merit.

Peters, P.J., Rose, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.