People v Pittman

2018 NY Slip Op 00358 [157 AD3d 1130]

January 18, 2018

Appellate Division, Third Department

As corrected through Wednesday, February 28, 2018

[*1]

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

Danielle Neroni Reilly, Albany, for appellant.

Robert M. Carney, District Attorney, Schenectady (Jennifer Uhl, Law Intern), forrespondent.

Rumsey, J. Appeal from a judgment of the Supreme Court (Coccoma, J.), rendered August18, 2015 in Schenectady County, convicting defendant upon his plea of guilty of the crime ofattempted promoting prison contraband in the first degree.

In satisfaction of a two-count indictment and other pending charges, defendant pleaded guiltyto the reduced charge of attempted promoting prison contraband in the first degree and waivedhis right to appeal. Supreme Court sentenced defendant as a second felony offender, inaccordance with the terms of the plea agreement, to a prison term of 11/2 to 3years, to run consecutively to the term he was currently serving. Defendant appeals.

We affirm. Although defendant's unchallenged waiver of the right to appeal does notpreclude his contention that his plea was not voluntary, it is nevertheless unpreserved for ourreview as the record does not reflect that he made an appropriate postallocution motion (see People v Hopper, 153 AD3d1045, 1046 [2017]; People vRamos, 135 AD3d 1234, 1234-1235 [2016], lv denied 28 NY3d 935 [2016]).Furthermore, defendant made no statements during the plea colloquy that cast doubt on thevoluntariness of the plea or triggered the narrow exception to the preservation requirement (see People v White, 153 AD3d1041, 1041-1042 [2017]; People vLowe, 153 AD3d 1043, 1043 [2017], lv denied 30 NY3d 981 [2017]; People v Royce, 122 AD3d 1008,1009 [2014]).

Defendant's further contention that he was improperly sentenced as a second felony [*2]offender also is unpreserved for our review given that he did notobject to the second felony offender statement at sentencing (see People v Hummel, 127 AD3d 1506, 1507 [2015], lvdenied 25 NY3d 1202 [2015]; People v Walton, 101 AD3d 1489, 1490 [2012], lv denied20 NY3d 1105 [2013]). In any event, defendant pleaded guilty with the understanding that hewould be sentenced as a second felony offender, a second felony offender statement wasprovided to defendant prior to sentencing, which defense counsel acknowledged that he reviewedwith defendant in detail, and defendant declined the opportunity to controvert any aspect of theprior conviction set forth in the second felony offender statement. Notwithstanding somemisstatements at sentencing regarding the dates of the prior felony offense, if the issue had beenpreserved, we would find that there was substantial compliance with CPL 400.21 (3) so as togive defendant adequate notice and an opportunity to contest the prior felony conviction, and,under the circumstances, that defendant was properly sentenced as a second felony offender (see People v Smith, 89 AD3d1328, 1329 [2011]; People vGlynn, 72 AD3d 1351, 1352 [2010], lv denied 15 NY3d 773 [2010]; People v Ellis, 53 AD3d 776, 777[2008]).

To the extent that defendant's ineffective assistance of counsel claim survives hisunchallenged waiver of the right to appeal, it too is unpreserved for our review inasmuch as therecord does not reflect that defendant moved to withdraw his plea (see People v Osgood, 111 AD3d1029, 1030 [2013], lv denied 22 NY3d 1089 [2014]; People v Caldwell, 80 AD3d 998,998 [2011], lv denied 16 NY3d 857 [2011]).

McCarthy, J.P., Egan Jr., Devine and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.