| People v Woods |
| 2018 NY Slip Op 00868 [158 AD3d 900] |
| February 8, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Earl Woods, Appellant. |
Harvey C. Silverstein, Latham, for appellant.
P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered November 13, 2015, convicting defendant upon his plea of guilty of the crime ofcriminal sexual act in the third degree (two counts).
In satisfaction of a seven-count indictment, defendant pleaded guilty to two counts ofcriminal sexual act in the third degree. Thereafter, defendant moved pro se to withdraw his guiltyplea based on the allegation that police improperly obtained his DNA without a warrant. Whengiven the opportunity to make further arguments in support of his motion, defendant claimed thatthe People had invented evidence against him. Finding that defendant had not provided apersuasive argument in support of withdrawing his guilty plea, County Court denied the motion.The court thereafter sentenced defendant on each count to a prison term of 3
Defendant did not argue to County Court that the indictment should be dismissed because ofthe 14-month period between a police interview and his indictment, and, as a result, the Peoplewere never provided an opportunity to address the issue or develop the record in that regard(see People v Jordan, 62 NY2d 825, 826 [1984]; People v Denis, 276 AD2d 237,247 [2000], lv denied 96 NY2d 782 [2001]). Accordingly, we find that defendant'scontention that he was denied due process because of this delay is unpreserved for ourreview.
[*2] Next, as defendant provided no evidence tosupport a claim of innocence, fraud or mistake in the inducement, we find that County Court didnot abuse its discretion in denying his motion to withdraw his guilty plea without holding ahearing (see People v Wren, 119AD3d 1291, 1292 [2014], lv denied 24 NY3d 1048 [2014]; People v Ravenell, 114 AD3d 997,998 [2014], lv denied 23 NY3d 1041 [2014]). Finally, we find ample support for theimposition of consecutive sentences, as contemplated by the plea agreement, given that the twocharges related to separate and distinct acts of sexual abuse. One count related to oral sexualconduct while the other related to anal sexual conduct, and both the indictment and defendant'splea allocution reflect that the two instances of abuse took place at separate times. Accordingly,we find that consecutive sentences were authorized (see People v Jackson, 101 AD3d 1685, 1685-1686 [2012], lvdenied 21 NY3d 1005 [2013]; People v Goodband, 291 AD2d 584, 585 [2002]).
Garry, P.J., McCarthy, Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.