| People v Butler |
| 2020 NY Slip Op 06412 [188 AD3d 1351] |
| November 12, 2020 |
| Appellate Division, Third Department |
| As corrected through Wednesday, December 30, 2020 |
[*1](November 12, 2020)
The People of the State of New York,Respondent,
v
Arthur Butler, Appellant. |
Lindsay H. Kaplan, Kingston, for appellant.
Jason J. Kovacs, Special Prosecutor, Kingston, for respondent.
Pritzker, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered December 13, 2017, convicting defendant upon his plea of guilty of the crime ofcriminal possession of a controlled substance in the fifth degree.
Defendant was charged in an indictment with criminal sale of a controlled substance in thethird degree. During the plea discussions that ensued, the Special Prosecutor agreed to reduce thecharge to criminal possession of a controlled substance in the fifth degree and to recommend asentence of 31/2 years in prison, which was six months less than the four-yearmaximum. County Court agreed to a reduction of the charge, but announced that it would imposethe maximum sentence of four years in prison. In response, defense counsel confirmed that, ifdefendant pleaded guilty to the reduced charge, he understood that a four-year prison term wouldbe imposed. County Court then advised the parties that the sentence also included a two-yearperiod of postrelease supervision. With the terms of the plea agreement set forth on the record,defendant pleaded guilty to criminal possession of a controlled substance in the fifth degree andwaived his right to appeal. He was subsequently sentenced to four years in prison, followed bytwo years of postrelease supervision. Defendant appeals.
Initially, defendant contends that the Special Prosecutor breached the terms of the pleaagreement by not recommending that he be sentenced to 31/2 years in prison.Although the Special Prosecutor failed to make this recommendation at sentencing, there was nobreach of the plea agreement as County Court did not make a commitment to be bound by thisrecommendation and clearly indicated that it would sentence defendant to the maximum of fouryears in prison (see generally People vThompson, 79 AD3d 1457, 1457-1458 [2010]; People v McLean, 59 AD3d 859, 860 [2009]). Moreover, contraryto defendant's claim, the record discloses that he was fully advised that the sentence that was partof the plea agreement included a two-year period of postrelease supervision, and he wassentenced in accordance therewith (seePeople v Pendelton, 81 AD3d 1037, 1038 [2011], lv denied 16 NY3d 898[2011]). Therefore, inasmuch as defendant entered a knowing, intelligent and voluntary guiltyplea, we find no reason to disturb the judgment of conviction.
Lynch, J.P., Mulvey, Devine and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.
