People v Gonzalez

2018 NY Slip Op 01505 [159 AD3d 1135]

March 8, 2018

Appellate Division, Third Department

As corrected through Wednesday, May 2, 2018

[*1]

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

Todd G. Monahan, Schenectady, for appellant.

Robert M. Carney, District Attorney, Schenectady (Daniel Young, Law Intern), forrespondent.

McCarthy, J. Appeal from a judgment of the County Court of Schenectady County (MurphyIII, J.), rendered May 20, 2015, convicting defendant upon her plea of guilty of the crime ofrobbery in the third degree.

Defendant waived indictment and agreed to be prosecuted by a superior court informationcharging her with robbery in the third degree. She pleaded guilty to that crime in satisfaction ofseveral other charges related to the robbery incident, as well as other charges related to a separateincident. Under the terms of the plea agreement, she was to be sentenced to 11/3 to4 years in prison. Prior to sentencing, however, defendant was arrested and charged with assaultin the second degree. As a result of a new agreement to satisfy that assault charge, as well as allprior charges in exchange for a higher sentence on the robbery conviction, County Courtsentenced defendant to a prison term of 2 to 6 years on the robbery conviction and adhered to theother terms of the plea agreement. Defendant appeals.

Defendant contends that County Court committed reversible error by imposing an enhancedsentence without having administered an Outley warning at the time that she entered herguilty plea and by not giving her the opportunity to withdraw her guilty plea. This claim has notbeen preserved for our review due to defendant's failure to object at sentencing or move towithdraw her guilty plea (see People vMoore, 149 AD3d 1349, 1349 [2017], lv denied 29 NY3d 1131 [2017]; People v Garrow, 147 AD3d 1160,1161-1162 [2017]; People v Bennett, 143 AD3d [*2]1008, 1009 [2016]). Defendant also argues that counsel wasineffective by failing to object to the enhanced sentence. This claim is similarly unpreserved forour review (see People v Smith, 121AD3d 1131, 1132 [2014], lv denied 24 NY3d 1123 [2015]). In any event, this claimfails because defendant has not established that counsel lacked a strategic reason for thisomission (see People v Saylor, 132AD3d 1018, 1018-1019 [2015]; People v Whitted, 12 AD3d 840, 841 [2004], lv denied 4NY3d 769 [2005]), inasmuch as defendant was spared the possibility of an additional felonyconviction for assault in the second degree and the higher sentence she received on the robberyconviction still resulted in a lower cumulative sentence than if defendant had been separatelyconvicted of and sentenced on the assault charge as well.

Garry, P.J., Egan Jr., Lynch and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.