| People v Clerveau |
| 2019 NY Slip Op 05594 [174 AD3d 1066] |
| July 11, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Christopher Clerveau, Appellant. |
Craig S. Leeds, Albany, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Broome County (Dooley, J.),rendered February 1, 2017, convicting defendant upon his plea of guilty of the crimes of criminalsale of a controlled substance in or near school grounds and enterprise corruption.
In August 2016, defendant was jointly indicted with six others and he was charged with onecount of criminal enterprise, 30 counts involving the unlawful possession and sale of heroin andfive counts of criminal sale of a controlled substance in or near school grounds. The chargedactivity took place between April 2016 and July 2016 and was based on a theory of accessorialliability. During an appearance on October 18, 2016, the People offered a plea agreement thatwould require defendant to plead guilty to the enterprise corruption charge and one count ofcriminal sale of a controlled substance in or near school grounds in exchange for a total prisonexposure of nine years. Defendant noted that the offer was less than the initial 12-year offer, butraised a concern that his white codefendants were offered significantly less prisontime.[FN*] County Courtgranted defendant's request for a few days to consider the offer. On October 21, 2016, defendantaccepted a new offer that capped his total prison sentence at eight years. Defendant then pleadedguilty to the two charges and waived his right to appeal. He was thereafter sentenced to thenegotiated prison term of eight years and two years of postrelease supervision on the criminalsale conviction and a concurrent prison term of 2 to 6 years on the enterprise corruptionconviction. Defendant appeals.
We affirm. Although defendant's challenge to the voluntariness of his plea is not precludedby his unchallenged appeal waiver, the record does not reflect that he made an appropriatepostallocution motion despite having the opportunity to do so, and, as such, he failed to preservethis claim for our review (see People vWilliams, 27 NY3d 212, 219-220 [2016]; People v Taft, 169 AD3d 1266, 1267 [2019]; People v Norton, 164 AD3d 1502,1503 [2018], lv denied 32 NY3d 1114 [2018]). Nor did defendant make any statementsduring the plea allocution that cast doubt upon his guilt or otherwise called into question thevoluntariness of his plea (see People v Williams, 27 NY3d at 220; People v Henry, 166 AD3d 1213,1214 [2018], lv denied 33 NY3d 949 [2019]). Were this issue before us, we wouldnevertheless find that it lacks merit. Accounting for the new reduced term of eight years, CountyCourt confirmed that the sentencing structure would mirror the actual sentence. Defendantacknowledged that he understood. Although defendant stated that he felt forced to take the pleaor face a far lengthier prison term, such situational pressure does not constitute undue duress, anddefendant acknowledged that no one threatened him to take the plea rather than exercise his rightto trial (see People v Sparbanie, 158AD3d 942, 944 [2018], lv denied 31 NY3d 1087 [2018]; People v Charleston, 142 AD3d1248, 1250 [2016]).
Defendant also claims that he was denied the effective assistance of counsel. Although thisclaim survives the unchallenged appeal waiver to the extent that it impacts the voluntariness ofthe plea, it is not preserved for our review as the record fails to disclose that defendant made anappropriate postallocution motion (see People v Taft, 169 AD3d at 1267; People vNorton, 164 AD3d at 1503). We do take note that defendant confirmed at sentencing that hehad "ironed . . . out" his issues with counsel.
Defendant maintains that he was denied his constitutional right to equal protection due toracial disparity in the lesser prison terms offered to his codefendants ostensibly based on race. Iftrue, this would be fundamentally unfair and constitute a violation of defendant's equal protectionrights (see People v Aviles, 28NY3d 497, 502 [2016]; Fair vSmith, 93 AD3d 964, 966 [2012], appeal dismissed 19 NY3d 874 [2012]; Matter of Walton v New York State Dept.of Correctional Servs., 57 AD3d 1180, 1184-1185 [2008], affd 13 NY3d 475[2009]). When defendant first raised that concern, however, the People responded that defendantwas not similarly situated with his codefendants given his role in multiple heroin sales to anundercover officer, including five sales in or near school grounds. The People further suggestedan evidentiary hearing on the issue so that County Court "can become fully aware of[defendant's] full involvement in the case." After a three-day adjournment, defendant opted toplead guilty without requesting a hearing on the racial disparity claim. On this record, defendantfailed to establish a factual basis for his claim that he was denied the right to equal protectionunder the law (see id.).
Finally, defendant's contention that the sentence was harsh and excessive is precluded by hisappeal waiver (see People v Dobbs,157 AD3d 1122, 1122-1123 [2018], lv denied 31 NY3d 983 [2018]).
Garry, P.J., Clark, Devine and Aarons, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:According to the presentencereport, defendant identifies as black.