| People v Derrig |
| 2019 NY Slip Op 06650 [175 AD3d 1675] |
| September 19, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Eric J. Derrig, Appellant. |
Adam H. Van Buskirk, Auburn, for appellant, and appellant pro se.
Kirk O. Martin, District Attorney, Owego (Sandra L. Cardone of counsel), forrespondent.
Appeal from a judgment of the County Court of Tioga County (Keene, J.), rendered May 20,2016, convicting defendant upon his plea of guilty of the crime of criminal possession of acontrolled substance in the third degree.
Defendant pleaded guilty to an indictment charging him with one count of criminalpossession of a controlled substance in the third degree with the understanding that he would besentenced to a prison term of seven years followed by three years of postrelease supervision.County Court granted defendant's request for release pending sentencing, warning defendant thatit would not be bound by its sentencing commitment if defendant was arrested on new charges orotherwise failed to appear. Following a traffic stop in Pennsylvania and the discovery of drugs inthe vehicle in which defendant was a passenger, defendant was returned to County Court on awarrant in anticipation of additional drug-related charges being filed in Pennsylvania. CountyCourt thereafter sentenced defendant as a second felony offender to an enhanced sentence of7
We affirm. Defendant argues that County Court erred in imposing an enhanced sentencebecause he did not violate the terms of the plea agreement. At the time of sentencing, defendanthad not been formally charged based upon the events that transpired in Pennsylvania becauseauthorities in that state were awaiting confirmation that the substance seized in the traffic stopwas heroin. Because he was not actually "arrested" on new charges, defendant's argumentcontinues, he should not have been subject to an enhanced sentence. The record reflects,however, that defendant elected not to pursue "a full hearing on whether or not he was arrested"in Pennsylvania and agreed to the enhanced sentence in order to avoid a potentially lengthierprison term, thereby rendering this issue unpreserved for our review (see People v Benninger, 173 AD3d1568, 1569 & n [2019]; Peoplev Smith, 162 AD3d 1408, 1409 [2018]; People v Adams, 153 AD3d 1449, 1451 [2017]; People v Bennett, 143 AD3d 1008,1009 [2016]). As for defendant's assertion that the enhanced sentence imposed is harsh andexcessive, we discern no abuse of discretion or extraordinary circumstances warranting areduction of the sentence in the interest of justice (see People v Smith, 162 AD3d at1409-1410; People v Aliano, 116AD3d 874, 875 [2014], lv denied 23 NY3d 1017 [2014]; People v Goree, 107 AD3d 1568,1568 [2013], lv denied 21 NY3d 1074 [2013]).
Although defendant argues that County Court should have recused itself, to the extent thatthis issue has been preserved for our review, we find it to be lacking in merit, as the record failsto reflect either a statutory basis for disqualification (see Judiciary Law§ 14) or evidence of judicial bias (see e.g. People v Holmes, 151 AD3d 1181, 1184 [2017], lvdenied 29 NY3d 1128 [2017]). Defendant's ineffective assistance of counsel claim, which ispremised upon counsel allegedly pressuring defendant to accept the plea, providing inaccurateinformation regarding defendant's sentencing options and failing to conduct discovery, implicatesmatters outside of the record that are more appropriately pursued via a CPL article 440 motion(see People v Williams, 171 AD3d1354, 1355 [2019]; People vAldous, 166 AD3d 1077, 1079 [2018], lv denied 32 NY3d 1124 [2018]).Defendant's remaining arguments, to the extent not specifically addressed, have been examinedand found to be lacking in merit.
Lynch, J.P., Clark, Mulvey, Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.