People v Henry

2018 NY Slip Op 07778 [166 AD3d 1213]

November 15, 2018

Appellate Division, Third Department

As corrected through Wednesday, January 2, 2018

[*1]

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

Christopher Hammond, Cooperstown, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (Sophie J. Marmor of counsel), forrespondent.

Pritzker, J. Appeal from a judgment of the County Court of Chemung County(Hayden, J.), rendered February 8, 2016, convicting defendant upon his plea of guilty ofthe crime of attempted promoting prison contraband in the first degree.

In 2001, defendant was convicted of murder in the second degree and assault in thefirst degree and was sentenced to a prison term of 25 years to life on the murderconviction and 15 years on the assault conviction (People v Henry, 306 AD2d539 [2003], lv denied 100 NY2d 621 [2003]). The certificate of conviction issilent as to whether the sentences were to run concurrently or consecutively; defendantinsists that the sentences were to run concurrently but acknowledges that they are beingserved consecutively. For reasons not apparent from the face of the record, defendantwas resentenced upon the foregoing convictions to the same terms of imprisonment in2012.

Thereafter, in 2015, defendant was indicted and charged with one count ofpromoting prison contraband in the first degree. Defendant agreed to plead guilty toattempted promoting prison contraband in the first degree in exchange for a prison termof 11/2 to 3 years—said sentence to be served consecutively to theprison term he already was serving. After defendant pleaded guilty and the matter wasadjourned for sentencing, defendant raised an issue as to the constitutionality of his priorconvictions—arguing that his murder conviction was unconstitutional because hehad been convicted under the wrong subdivision of Penal Law § 125.25and, further, that the sentence imposed upon his assault conviction was illegal because itarose out of the same criminal transaction as the murder conviction; therefore,defendant's argument continued, the sentences imposed thereon should have runconcurrently with one another. Following numerous adjournments to permit defensecounsel to develop this issue, County Court denied defendant's challenge to his predicatefelon status without a hearing and [*2]thereaftersentenced him as a second felony offender to the agreed-upon term of imprisonment.Defendant now appeals.

We affirm. Defendant's challenge to the voluntariness of his plea is unpreserved forour review in the absence of an appropriate postallocution motion (see People v Lamb, 162 AD3d1395, 1396 [2018]; Peoplev Gomez, 162 AD3d 1311, 1311-1312 [2018]; People v Gray, 162 AD3d1248, 1248 [2018]), and we discern no basis upon which to invoke the narrowexception to the preservation requirement (see People v Sisto, 161 AD3d 1483, 1483 [2018], lvdenied 32 NY3d 941 [2018]; People v Duggins, 161 AD3d 1445, 1446 [2018], lvdenied 32 NY3d 937 [2018]). Defendant, who was well aware that he would besentenced as a second felony offender, raised no issue as to his predicate felon status atthe time of his plea—inquiring only as to the manner in which his new term ofimprisonment would run relative to the period of incarceration he already wasserving—and did not otherwise make any statements that called into question thevoluntariness of his plea (seePeople v Muller, 159 AD3d 1232, 1233 [2018]). As for County Court's assertedfailure to rule on defendant's motion challenging the sufficiency of the grand juryminutes, defendant forfeited this claim, "as the right to challenge the sufficiency of thegrand jury evidence ceases upon entry of a guilty plea" (People v Carston, 163 AD3d1166, 1167 [2018], lv denied 32 NY3d 1002 [2018]; see People v Wilburn, 158AD3d 894, 894-895 [2018], lv denied 31 NY3d 1123 [2018]). Finally,"[a]lthough defendant argued at sentencing that his prior convictions wereunconstitutional, he failed to meet his burden to allege and prove the facts underlying hisclaims and, thus, to demonstrate his entitlement to a hearing" (People v Rice, 162 AD3d1244, 1247 [2018] [internal quotation marks, brackets and citation omitted], lvdenied 32 NY3d 940 [2018]; see People v Gumbs, 107 AD3d 548, 548-549 [2013],lv denied 22 NY3d 1156 [2014], cert denied 574 US &mdash, 135 S Ct143 [2014])—particularly given that the challenged convictions had been affirmedyears earlier (see People v Rice, 162 AD3d at 1247) and defendant had beenafforded ample opportunity to develop this issue prior to sentencing. Defendant'sremaining arguments, to the extent not expressly addressed, have been examined andfound to be lacking in merit.

Lynch, J.P., Clark, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.