| People v Orellana |
| 2020 NY Slip Op 01574 [181 AD3d 457] |
| March 10, 2020 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Isidro Orellana, Appellant. |
Janet E. Sabel, The Legal Aid Society, New York (Jose David Rodriguez Gonzalezof counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Christopher Michael Pederson ofcounsel), for respondent.
Judgment, Supreme Court, Bronx County (Ralph Fabrizio, J.), rendered July 11,2016, convicting defendant, upon his plea of guilty, of sexual abuse in the first degree,and sentencing him to a term of 6 months, with 10 years' probation, unanimouslyaffirmed.
Defendant did not preserve his argument that his guilty plea was rendered invalid bythe court's misstatement that sexual abuse in the first degree was not a violent felonyoffense. Defendant did not move to withdraw his plea before sentencing (see People v Williams, 27NY3d 212, 214 [2016]), and this case does not fall within the narrow exceptionwhere, because of the sequence of events, the defendant has "no practical ability" tomake a plea withdrawal motion (id. at 220-221). Between the plea and thesentencing, defense counsel and defendant had the opportunity to ascertain the true statusof the crime to which defendant had pleaded guilty, and to make a plea withdrawalmotion if so inclined (see id. at 223-224).
We decline to address the issue in the interest of justice. In any event, whether thecrime was classified as violent or nonviolent did not affect defendant's actual sentence inthe present case, and although it would affect his predicate violent felony status in theevent of a new conviction, "a defendant's eligibility for an enhanced sentence upon ahypothetical future conviction is merely a collateral consequence of a plea of guilty thatthe defendant need not be advised of in order for the guilty plea to be deemed fullyinformed" (People vAugust, 33 AD3d 1046, 1050 [3d Dept 2006] [internal quotation marksomitted], lv denied 8 NY3d 878 [2007]). Furthermore, the surroundingcircumstances do not warrant a conclusion that defendant would have opted not to pleadguilty absent the court's inaccurate characterization of the crime as nonviolent.Concur—Gische, J.P., Webber, Gesmer, Kern, JJ.