| People v Nieves |
| 2018 NY Slip Op 08198 [166 AD3d 1380] |
| November 29, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Ray Nieves, Also Known as Ray Faller,Appellant. |
Robert A. Regan, Glens Falls, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Clinton County (Ryan,J.), rendered October 26, 2015, convicting defendant upon his plea of guilty of the crimeof criminal possession of a controlled substance in the third degree.
Defendant pleaded guilty to an indictment charging him with criminal possession ofa controlled substance in the third degree. No sentencing commitment was made,although defendant reserved the right to dispute the People's assertion that he was asecond felony offender for sentencing purposes. During the plea colloquy, County Courtexplained the maximum potential sentence that defendant could receive, including if hewere adjudicated a predicate felony offender. County Court subsequently determined thatdefendant was a second felony offender and, at sentencing, rejected defendant's oralapplication to withdraw his guilty plea. County Court then sentenced defendant to aprison term of seven years to be followed by three years of postrelease supervision(hereinafter PRS). Defendant now appeals.
We affirm. Defendant argues that County Court abused its discretion in denying hismotion to withdraw his guilty plea without a hearing. "Whether to permit a defendant towithdraw his or her plea of guilty is left to the sound discretion of the trial court, andwithdrawal will generally not be permitted absent some evidence of innocence, fraud ormistake in its inducement" (People v Pooler, 158 AD3d 935, 936 [2018] [internalquotation marks, brackets and citations omitted]; see People v Jackson, 163 AD3d 1273, 1274 [2018], lvdenied 32 NY3d 1065 [2018]). Further,"[t]he nature and extent of the fact-finding procedures necessary to decide a motion towithdraw a guilty plea rest within the discretion of the trial court, and only in the rareinstance will a defendant be entitled to an evidentiary hearing" (People v Wrest, 159 AD3d1274, 1275 [2018] [internal quotation marks and citations omitted]).
[*2] Defendant was provided with a "reasonableopportunity to present his contentions" at sentencing (People v Tinsley, 35 NY2d926, 927 [1974]; see People vManor, 27 NY3d 1012, 1013-1014 [2016]) and, although he failed to preservemany of the arguments advanced in his pro se supplemental brief by raising them at thattime (see People v Griffin,134 AD3d 1228, 1230 [2015], lv denied 27 NY3d 1132 [2016]), he didmake conclusory claims that his judgment at the time of the plea had been impaired byfasting and his decision not to take unspecified medication.[FN*] Defendant did not, however, give "theslightest indication that [he] was uninformed, confused or incompetent" during theappearance that ended with his guilty plea, raising legal issues on his own initiative andstopping the plea colloquy by advising County Court that he had not spoken with counselenough to make an intelligent decision to plead guilty (People v Alexander, 97NY2d 482, 486 [2002]; accordPeople v Copeman, 77 AD3d 1187, 1188 [2010]). A recess ensued and, afterdiscussing the matter further with counsel, defendant agreed to proceed and confirmedthat he was satisfied with counsel's representation, had sufficiently consulted withcounsel and understood the ramifications of pleading guilty. "Accordingly, we discern nobasis upon which to disturb County Court's discretionary determination, after observingdefendant firsthand during the plea colloquy, to deny defendant's request to withdraw hisguilty plea" (People vPixley, 150 AD3d 1555, 1556 [2017] [citations omitted], lv denied 30NY3d 952 [2017]; see People v Manor, 27 NY3d at 1014; People v Snow, 159 AD3d1278, 1279 [2018]). This conclusion is in no way altered by defendant's request toproceed pro se at sentencing, which was based upon hazy suggestions of ineffectiveassistance and was immediately withdrawn when counsel deemed it to be a sign of abreakdown in the attorney-client relationship and asked to be relieved (see People v Stedge, 135AD3d 1174, 1176 [2016]).
We also find that defendant was properly sentenced as a second felony offender.Defendant was convicted in 2003 of various offenses and sentenced to a prison term of12 years without any period of PRS, after which the court clerk impermissibly issued acommitment order containing a five-year period of PRS (see People v Sparber, 10 NY3d457, 469-470 [2008]). The error was corrected in 2015, and defendant wasresentenced to the original prison sentence with no term of PRS (see Penal Law§ 70.85). It is true that a sentence upon the predicate conviction must havebeen imposed before commission of the present felony in order to qualify as a predicate(see Penal Law § 70.04 [1] [b] [ii]), but "resentencing to set rightthe flawed imposition of PRS at the original sentencing is [limited to that issue and is]not a plenary proceeding" (People v Lingle, 16 NY3d 621, 635 [2011]). Accordingly,notwithstanding the later removal from the 2003 sentence of the term of PRS, "theoriginal '[s]entence' for 'such prior conviction' remains valid, and that original sentencewas 'imposed before commission of the present felony,' thereby qualifying the priorconviction as a predicate felony conviction for purposes of sentencing on the currentcrime" (People v Boyer, 22NY3d 15, 25-26 [2013], quoting Penal Law § 70.04 [1] [b] [ii]; see People v Naughton, 93AD3d 809, 811 [2012], lv denied 19 NY3d 865 [2012]).
Finally, defendant contends that the sentence is harsh and excessive based upon,among other factors, his substance abuse history. County Court considered the relevantfactors and imposed a prison term on the low end of the permissible sentencing range(see Penal Law § 70.70 [1] [b]; [4] [b] [i]). Given defendant'scriminal history, which includes violent felonies, we find no abuse of discretion orextraordinary circumstances that would warrant a reduction of the sentence in the interestof justice (see People vJones, 155 AD3d 1103, 1106 [2017], lv denied 30 NY3d 1106[2018]).
McCarthy J.P., Mulvey, Rumsey and Pritzker, JJ., concur. Ordered that the judgmentis affirmed.
Footnote *:Defendant did claim inhis application that his right to testify before the grand jury was violated, but he forfeitedthat argument by pleading guilty (see People v Straight, 106 AD3d 1190, 1191 [2013]). Tothe extent that defense counsel's inaction on that issue impacted defendant's decision toplead guilty, "the failure to timely file a motion to dismiss the indictment on CPL 190.50(5) grounds, without more, does not constitute ineffective assistance of counsel" (People v Richardson, 162AD3d 1328, 1332 [2018]; see People v Wiggins, 89 NY2d 872, 873 [1996]).More has not been provided.