| People v Lamotte |
| 2020 NY Slip Op 03149 [184 AD3d 907] |
| June 4, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jeremy A. Lamotte, Appellant. |
Todd G. Monahan, Schenectady, for appellant.
Kristy L. Sprague, District Attorney, Elizabethtown (Kathryn M. Moryl of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Essex County (Meyer, J.), renderedDecember 4, 2017, convicting defendant upon his plea of guilty of the crime of grand larceny inthe fourth degree.
Defendant waived indictment, pleaded guilty to a superior court information charging himwith grand larceny in the fourth degree and waived his right to appeal. In exchange for his guiltyplea, the People agreed to recommend a sentence of 1
Defendant contends that his plea was induced by the promise of participation in the Willarddrug treatment program and that, once it was determined that he was ineligible for such program,County Court erred in failing to provide him an opportunity to withdraw his plea. Althoughdefendant's contention, to the extent that it implicates the voluntariness of the plea, is notprecluded by his unchallenged waiver of the right to appeal, it is nevertheless unpreserved as therecord does not reflect that he objected to what he characterizes as an enhanced sentence nor didhe make any postallocution motion to withdraw his plea (see People v Tole, 119 AD3d 982, 983-984 [2014]; People v Henion, 110 AD3d 1349,1350 [2013], lv denied 22 NY3d 1088 [2014]). Were this issue before us, we would findit to be without merit. A review of the record establishes that there was no commitment by thePeople or the court that defendant would be sentenced to the Willard drug treatment program.Although the People agreed not to oppose such a sentence in the event that defendant waseligible therefor, the record reflects that, given defendant's prior violent felony conviction, suchsentence was not available. Moreover, the plea agreement form specifically provides thatsentencing was at the sole discretion of the court and that defendant's plea was not conditionedupon or subject to the court committing to impose the recommended sentence agreed to by thePeople. Moreover, during the plea colloquy, the court explicitly informed defendant that it wasmaking no sentencing commitment and that the maximum sentence of 2 to 4 years could beimposed, which defendant assured the court he understood. Under such circumstances, the courtwas under no obligation to provide defendant with an opportunity to withdraw his plea prior toimposing sentence (see People vAnderson, 177 AD3d 1031, 1032 [2019]; People v Roberts, 38 AD3d 1014, 1014-1015 [2007]; People v Hynes, 3 AD3d 740, 740[2004]; People v Gero, 286 AD2d 789, 789 [2001], lv denied 97 NY2d 641[2001]).
Garry, P.J., Clark, Devine and Reynolds Fitzgerald, JJ., concur. Ordered that the judgment isaffirmed.