People v Carrington

2021 NY Slip Op 03215 [194 AD3d 1253]

May 20, 2021

Appellate Division, Third Department

As corrected through Wednesday, June 30, 2021

[*1](May 20, 2021)

The People of the State of New York,Respondent, v Derrick Carrington, Also Known as D-Magic,Appellant.

John B. Casey, Cohoes, for appellant.

Letitia James, Attorney General, New York City (Lisa Fleischmann of counsel), forrespondent.

Clark, J. Appeal from a judgment of the County Court of Schenectady County (Sira, J.),rendered December 18, 2017, convicting defendant upon his plea of guilty of the crime ofattempted criminal possession of a controlled substance in the third degree.

Defendant and numerous codefendants were charged in a multicount indictment with variousdrug-related crimes arising from their participation in a large-scale narcotics distributionnetwork. In satisfaction of the five charges brought against defendant, the People extended a pleaoffer under which defendant would plead guilty to attempted criminal possession of a controlledsubstance in the third degree and be sentenced, as a predicate felon, to a prison term of no morethan 21/2 years, followed by a period of postrelease supervision of between11/2 to 3 years as determined by County Court, to run concurrently with a sentencethat was imposed in connection with an outstanding parole violation. The plea offer also requireddefendant to waive his right to appeal. Defendant accepted the plea offer and, after being advisedof the trial-related rights that he was relinquishing, entered a plea of guilty and signed a writtenwaiver of the right to appeal. At sentencing, defense counsel advised County Court of the parties'joint recommendation that a 21/2-year period of postrelease supervision beimposed as part of the sentence, provided that County Court agreed. County Court did not adoptthis recommendation and sentenced defendant, in accordance with the terms of the pleaagreement, as a second felony drug offender to 21/2 years in prison, followed bythree years of postrelease supervision. Defendant appeals.

Initially, defendant contends that County Court improperly enhanced the sentence andimposed a three-year period of postrelease supervision contrary to the parties' jointrecommendation that a shorter 21/2-year period be imposed.^[FN*] We find this claim to beunavailing as County Court made it clear that the plea agreement included a period of postreleasesupervision of between 11/2 and 3 years. Significantly, the plea agreement wasmemorialized in a written document clearly stating that the sentence ultimately imposed waswithin the court's "sole discretion." The court was not bound by the joint sentencingrecommendation and the period of postrelease supervision that was imposed was consistent withthe terms of the plea agreement (seePeople v Butler, 188 AD3d 1351, 1351-1352 [2020]; People v Harrington, 185 AD3d1301, 1302 [2020]). Therefore, County Court was not obligated to provide defendant withthe opportunity to withdraw his plea prior to imposing sentence (see People v Lamotte, 184 AD3d907, 908 [2020]; People vAnderson, 177 AD3d 1031, 1032 [2019]).

In addition, defendant asserts that County Court did not conduct an adequate inquiry into thevoluntariness of his guilty plea given his postplea statement in which he suggested that hepossessed the drugs only for his personal use. This claim, however, [*2]has not been preserved for our review as the record fails to disclosethat defendant made an appropriate postallocution motion and, under these circumstances, thenarrow exception to the preservation requirement is inapplicable (see People v Hemingway, 192 AD3d1266, 1267 [2021]; People vMosher, 191 AD3d 1170, 1171 [2021]). Likewise, defendant's claim that he was deniedthe opportunity to controvert the allegations contained in the predicate felony statement(see CPL 400.21 [3]) is unpreserved given his failure to object at sentencing (see People v Hummel, 127 AD3d1506, 1507 [2015], lv denied 25 NY3d 1202 [2015]; People v House, 119 AD3d 1289,1290 [2014]). For the same reason, his claim that he was denied the opportunity to make apersonal statement prior to sentencing (see CPL 380.50 [1]) is unpreserved (see People v Weis, 171 AD3d1403, 1404 n [2019]; People vMorales-Lopez, 110 AD3d 1248, 1249 [2013], lv denied 22 NY3d 1140 [2014]),and, in any event, is belied by the record as the court asked defendant during the sentencingproceeding if he wished to be heard and he specifically declined.

Lastly, the parties agree that the uniform sentence and commitment form inaccurately reflectsthat defendant was sentenced as a second felony offender when, in fact, he was sentenced as asecond felony drug offender. The record discloses that the certificate of conviction contains thesame error. Consequently, both documents must be amended accordingly (see People v Scharborough, 189 AD3d1964, 1967 [2020]; People vMorton, 173 AD3d 1464, 1466 [2019], lv denied 34 NY3d 935 [2019]; People v Miller, 172 AD3d 1530,1532-1533 [2019], lv denied 34 NY3d 935 [2019]).

Egan Jr., J.P., Aarons, Pritzker and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment is affirmed, and matter remitted for entry of an amended uniform sentence andcommitment form and certificate of conviction.

Footnote *:To the extent that this claimimplicates the legality of the sentence, it is not precluded by defendant's waiver of the right toappeal (see People v Sablan, 177AD3d 1024, 1025 [2019], lv denied 34 NY3d 1132 [2020]; People v Surdis, 163 AD3d 1363,1364 n [2018], lv denied 32 NY3d 1068 [2018]). In any event, we find such waiver to beinvalid given the overbroad language contained in the written waiver, which forecloseddefendant from pursuing other available remedies, and County Court's failure to "ensur[e] thatdefendant understood that some appellate and collateral review survived the waiver" (People v Figueroa, 192 AD3d1269, 1270 [2021]).