| People v Parker |
| 2019 NY Slip Op 05227 [173 AD3d 1557] |
| June 27, 2019 |
| Appellate Division, Third Department |
[*1](June 27, 2019)
| The People of the State of New York,Respondent, v Sheiquan Parker, Appellant. |
Todd G. Monahan, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Garry, P.J. Appeals (1) from a judgment of the County Court of Schenectady County(Sypnewski, J.), rendered April 18, 2016, convicting defendant upon his plea of guilty of thecrimes of attempted robbery in the second degree and attempted robbery in the third degree, and(2) by permission, from an order of said court, entered March 19, 2018 in Schenectady County,which denied defendant's motion pursuant to CPL 440.10 and 440.20 to vacate the judgment ofconviction and to set aside the sentence, without a hearing.
Defendant was charged in a two-count indictment with attempted robbery in the third degreeand attempted robbery in the second degree stemming from an incident wherein the victim waskilled when defendant and others attempted to rob him of marihuana. Defendant entered into awritten plea and cooperation agreement with the District Attorney's office, which provided thatdefendant agreed to plead guilty to the entire indictment and waive his right to appeal. Ifdefendant, among other things, cooperated "fully and truthfully . . . in theinvestigation and prosecution" of others involved in the robbery incident, he would be permittedto withdraw his guilty plea to attempted robbery in the second degree. The cooperationagreement specifically provided that the truthfulness of any statements and testimony bydefendant was to be determined solely by the People and that, in the event that defendant was notcooperative, the People were not bound by the plea agreement. Defendant then pleaded guilty tothe charges in the indictment and waived his right to appeal.
At sentencing, the People informed County Court that defendant had violated the pleaagreement by providing inconsistent testimony before the grand jury and at the trial of hiscodefendant. Consequently, the court sentenced defendant, a second felony offender, toconcurrent prison terms of seven years, followed by five years of postrelease supervision, for hisconviction of attempted robbery in the second degree and 2 to 4 years for his conviction ofattempted robbery in the third degree. Defendant's subsequent motion pursuant to CPL article440 was denied without a hearing. Defendant appeals from the judgment of conviction and, bypermission, the denial of his CPL article 440 motion.
We affirm. With regard to the direct appeal, defendant contends that County Court erred innot giving him an opportunity to withdraw his guilty plea after the People enforced the pleaagreement against him. This claim is not preserved for our review as defendant did not object atsentencing or move to withdraw his guilty plea (see People v Gonzalez, 159 AD3d 1135, 1135 [2018]).
To the extent that defendant challenges the sufficiency of the proof that he violated the termsof the plea agreement, it is without merit. The cooperation agreement specifically provided thatdefendant was required to cooperate "fully and truthfully . . . in the investigationand prosecution" of others involved in the incident, and that the truthfulness of any of hisstatements and testimony would be determined by the People. The People informed CountyCourt that defendant was not cooperative or truthful in the prosecution of his codefendant andprovided specific, detailed examples of inconsistencies between his grand jury and trialtestimonies regarding the underlying criminal activity that appeared to be an attempt toundermine, albeit unsuccessfully, the People's prosecution of his codefendant. The record reflectsthat defendant was aware that, if he violated the cooperation agreement, the People would not bebound by the plea bargain and that the court could impose the maximum statutory sentence onboth convictions.
Although defendant correctly states that "a guilty plea induced by an unfulfilled promiseeither must be vacated or the promise honored" (People v Selikoff, 35 NY2d 227, 241[1974], cert denied 419 US 1122 [1975]), in this case no promises were in fact breachedby the People. Rather, it was defendant who did not abide by the terms of the cooperationagreement when he failed to testify truthfully at his codefendant's trial (see People v Huff, 133 AD3d1223, 1226 [2015], lv denied 27 NY3d 999 [2016]). We thus find that County Courtwas not obligated to provide defendant an opportunity to withdraw his plea. To the extent thatdefendant challenges the severity of the sentence imposed, it is precluded by his unchallengedwaiver of the right to appeal (see Peoplev Gumbs, 169 AD3d 1119, 1120 [2019]; People v Mones, 168 AD3d 1288, 1289 [2019]).
Turning to defendant's CPL article 440 motion to vacate the judgment of conviction, CountyCourt did not err in denying said motion without a hearing as the arguments advanced thereinwere based upon information in the record and, in fact, were raised on direct appeal (see People v Lamb, 162 AD3d1395, 1397 [2018], lv denied 32 NY3d 1112 [2018]; People v Douglas, 162 AD3d1212, 1217 [2018], lv denied 31 NY3d 1147 [2018]; People v Miller, 159 AD3d 1045,1046 [2018], lv denied 31 NY3d 1084 [2018]).
Egan Jr., Clark, Devine and Pritzker, JJ., concur. Ordered that the judgment and order areaffirmed.