| People v Mastro |
| 2019 NY Slip Op 05814 [174 AD3d 1232] |
| July 25, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Michael Mastro, Appellant. |
Theresa M. Suozzi, Saratoga Springs, for appellant.
Paul Czajka, District Attorney, Hudson (James A. Carlucci of counsel), for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Columbia County (Nichols, J.),rendered March 15, 2018, which revoked defendant's probation and imposed a sentence ofimprisonment.
In August 2014, defendant waived indictment and agreed to be prosecuted pursuant to asuperior court information charging him with one count of criminal mischief in the third degreeand one count of driving while ability impaired by drugs. Consistent with the terms of anegotiated plea agreement, defendant pleaded guilty to such charges and received a split sentenceof six months in the local jail and five years of probation. In January 2018, defendant wascharged with violating three specific terms and conditions of his probation. Pursuant to anegotiated disposition, defendant thereafter admitted to violating his probation. Although CountyCourt made no sentencing commitment, defendant was apprised prior to entering his admissionsthat his maximum sentencing exposure upon his conviction of criminal mischief in the thirddegree would be four years in prison. County Court thereafter sentenced defendant to a prisonterm of 1 to 4 years upon his conviction of criminal mischief in the third degree and to a definiteone-year term of incarceration upon his conviction of driving while ability impaired by drugs.This appeal ensued.
Defendant's challenge to the voluntariness of his guilty plea to the probation violation isunpreserved for our review absent evidence of an appropriate postallocution motion (see People v Shaw, 157 AD3d1138, 1140 [2018]; People vSumter, 157 AD3d 1125, 1125 [2018]; People v Moulton, 134 AD3d 1251, 1252 [2015]). Further,defendant did not make any statements during the plea allocution that were inconsistent with hisguilt or otherwise called into question the voluntariness of his plea; hence, the narrow exceptionto the preservation requirement is inapplicable (see People v Harrington, 170 AD3d 1338, 1338 [2019], lvdenied 33 NY3d 1031 [2019]; People v Jones, 139 AD3d 1237, 1237 [2016], lv denied 28NY3d 932 [2016]). In any event, defendant's assertion that he felt pressured to accept the pleadeal amounts to nothing more that "the type of situational coercion faced by many defendantswho are offered a plea deal, and it does not undermine the voluntariness of defendant'sadmissions to violating probation" (People v Miazga, 171 AD3d 1358, 1360 [2019] [internal quotationmarks, brackets and citations omitted]; see People v Torres, 165 AD3d 1325, 1326 [2018], lvdenied 32 NY3d 1210 [2019]).
To the extent that defendant's brief may be read as asserting an ineffective assistance ofcounsel claim, such claim—to the degree that it implicates the voluntariness of defendant'sguilty plea—is similarly unpreserved for our review (see People v Sumter, 157AD3d at 1126). Defendant's remaining arguments on that point, including his assertion thatcounsel failed to properly investigate potential defenses and did not sufficiently confer withhim—involve matters outside of the record that are more properly the subject of a CPLarticle 440 motion (see People vTaylor, 135 AD3d 1237, 1238 [2016], lv denied 27 NY3d 1075 [2016]; People v Sylvan, 107 AD3d 1044,1045-1046 [2013], lv denied 22 NY3d 1141 [2014]). Finally, as the record does notreflect that defendant validly waived his right to appeal, his challenge to the sentences imposedas harsh and excessive is not precluded. "That said, given defendant's inability to comply with theterms of his probation, we find no abuse of discretion or extraordinary circumstances warrantinga modification of his sentence[s] in the interest of justice" (People v Harrington, 170AD3d at 1339 [internal quotation marks and citations omitted]; see People v Thomas, 163 AD3d1293, 1295 [2018], lv denied 32 NY3d 1068 [2018]). Defendant was apprised of hismaximum sentencing exposure prior to admitting his guilt to the violation of probation petitionand, contrary to his assertion, the indeterminate sentence imposed upon his conviction ofcriminal mischief in the third degree and the definite sentence imposed upon his conviction ofdriving while ability impaired by drugs did not run consecutively. Rather, such sentences ranconcurrently (see Penal Law §§ 70.15 [3]; 70.25 [1] [b]; Vehicle andTraffic Law §§ 1192 [4]; 1193 [1] [b] [i]).
Garry, P.J., Aarons, Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.