| People v Hines |
| 2021 NY Slip Op 06886 [200 AD3d 1217] |
| December 9, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Tevin Hines, Also Known as Trigga,Appellant. |
Amanda FiggsGanter, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the Supreme Court (Hogan, J.), rendered April 12,2018 in Schenectady County, convicting defendant upon his plea of guilty of the crimes ofcriminal possession of a weapon in the second degree and criminal possession of a controlledsubstance in the third degree.
Following a shooting into an occupied convenience store on June 24, 2017, defendant wascharged in a multicount indictment with attempted murder in the second degree and other crimes(hereinafter the first indictment). Months later, defendant was charged in an unrelated indictmentwith criminal possession of a controlled substance in the third degree (hereinafter the secondindictment) and in a third, multicount indictment with various crimes (hereinafter the thirdindictment). In February 2018, after plea negotiations, defendant pleaded guilty, as charged in thefirst indictment, to criminal possession of a weapon in the second degree in satisfaction of allcharges in the first and third indictments. He also pleaded guilty to criminal possession of acontrolled substance in the third degree as charged in the second indictment. Defendant was alsorequired by the terms of the plea agreement to waive his right to appeal. In exchange for hisguilty plea, defendant was promised a prison sentence of 11 years to be followed by five years ofpostrelease supervision (hereinafter PRS) on the weapon possession count in the first indictment.Defendant was further promised a concurrent five-year prison term on the drug-related count inthe second indictment to be followed by a period of PRS, the duration of which was to bedetermined at sentencing based upon the presentence investigation report. Defendant was notadvised of the specific or maximum potential duration of the latter PRS period. At sentencing inApril 2018, defendant acknowledged that he was a second violent felony offender, and SupremeCourt imposed the agreed-upon prison term of 11 years followed by five years of PRS on theweapon conviction, and a five-year prison term followed by three years of PRS on the drugconviction, and ordered the sentences to run concurrently. Defendant appeals. We affirm.
Defendant contends that his guilty plea was not knowing, voluntary and intelligent basedupon a Catu error—in that Supreme Court failed to advise him during the pleaallocution of the length of PRS to be imposed on his drug-related conviction. As defendant'schallenge is to the voluntariness of his plea, it survives his uncontested appeal waiver (seePeople v Seaberg, 74 NY2d 1, 10 [1989]; People v Ramos, 179 AD3d 1395, 1396 [2020], lv denied35 NY3d 973 [2020]). Nevertheless, because defendant's argument is directed at thevoluntariness of his guilty plea, defendant was required, but failed, to preserve it via apostallocution motion (see People vDelorbe, 35 NY3d 112, 119 [2020]). Indeed, where "a defect in a plea allocution is clearon the face of the record and implicates due process, the defendant [*2]. . . must preserve his or her claim that the defect madethe plea involuntary unless the defendant has no practical ability to do so" (People v Williams, 27 NY3d 212,221-222 [2016]). Here, any defect in his plea allocution was clear on the face of the record.Furthermore, the exception to the preservation rule does not apply given that two months passedbetween defendant's plea and his sentencing and, therefore, defendant had the practical ability toraise this issue prior to the imposition of sentence. As such, defendant's claim is unpreserved (see People v Scharborough, 189 AD3d1964, 1965 [2020]; People vWhite, 142 AD3d 1254, 1255 [2016], lv denied 28 NY3d 1128 [2016]; compare People v Mudd, 169 AD3d1166, 1167 [2019]).
Defendant also argues that he received ineffective assistance of counsel. To the extent thatthis argument implicates the voluntariness of his plea, it survives the uncontested appeal waiverbut is unpreserved in the absence of a postallocution motion (see People v McCoy, 198 AD3d 1021, 1022 [2021]; People v Almonte, 179 AD3d1222, 1224 [2020], lv denied 35 NY3d 940 [2020]). Defendant's argument that thesentence was harsh and excessive is precluded by his unchallenged appeal waiver (see People v Steele, 181 AD3d972, 973 [2020]). Finally, as to his unpreserved claims, we decline defendant's request thatwe take corrective action in the interest of justice.
Garry, P.J., Egan Jr., Pritzker and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.