X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Leanne Lapp, Public Defender, Canandaigua, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Axelle Lecomte-Mathewson of Counsel), for Defendant-Appellant. James B. Ritts, District Attorney, Canandaigua (Kaylan C. Porter of Counsel), for Respondent. Appeal from a judgment of the Ontario County Court (Frederick G. Reed, A.J.), rendered July 12, 2018. The judgment convicted defendant upon his plea of guilty of criminal sale of a controlled substance in the third degree (three counts). It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of three counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]). In appeal No. 2, defendant appeals from a judgment convicting him upon his plea of guilty of criminal sale of a controlled substance in the second degree (§ 220.41 [1]), which crime he committed while awaiting sentencing following his plea in appeal No. 1. Defendant waived his right to appeal in appeal No. 2, but did not do so in appeal No. 1. In appeal No. 1, defendant contends that his plea was not knowing, intelligent, and voluntary because the prosecutor and County Court suggested during his first appearance that he could be sentenced as a persistent felony offender based on his extensive criminal record, which included three prior felony convictions. Inasmuch as defendant’s motion to withdraw his plea was not made on the ground that the plea was involuntarily entered in light of his incorrect belief that he faced a possible life sentence if convicted after trial, defendant’s contention is not preserved for our review (see People v. Husted, 215 AD3d 1269, 1271 [4th Dept 2023], lv denied 40 NY3d 935 [2023]; People v. Gibson, 140 AD3d 1786, 1787 [4th Dept 2016], lv denied 28 NY3d 1072 [2016]). In any event, we note that a defendant’s misapprehension of his or her sentencing exposure does not render a guilty plea involuntary as a matter of law (see People v. Davis, 206 AD3d 1603, 1605 [4th Dept 2022]; People v. Murray, 175 AD3d 1191, 1191 [1st Dept 2019], lv denied 34 NY3d 1018 [2019]). Instead, it is just one of several factors for a court to consider in determining whether a plea was voluntary (see People v. Garcia, 92 NY2d 869, 870 [1998]). Defendant further contends in appeal No. 1 that his plea was involuntary because it was coerced by defense counsel’s alleged threat to withdraw from representing defendant if he did not plead guilty. Although preserved for our review, that contention lacks merit inasmuch as it is belied by the record (see People v. Gonzales, 197 AD3d 880, 881 [4th Dept 2021], lv denied 38 NY3d 1071 [2022]; People v. Davis, 129 AD3d 1613, 1614 [4th Dept 2015], lv denied 26 NY3d 966 [2015]). Indeed, during the plea colloquy, defendant stated that he was pleading guilty of his own free will and that no one had forced or threatened him into pleading guilty. As defendant contends and the People correctly concede, defendant did not validly waive his right to appeal in appeal No. 2 (see generally People v. Thomas, 34 NY3d 545, 565-566 [2019], cert denied — US —, 140 S Ct 2634 [2020]). We nevertheless reject defendant’s contention in each appeal that the sentence is unduly harsh or severe. We have reviewed defendant’s remaining contentions in appeal Nos. 1 and 2 and conclude that none warrants modification or reversal of the judgment in either appeal.

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
November 13, 2024
New York, NY

Honoring outstanding legal achievements focused at the national level, largely around Big Law and in-house departments.


Learn More
November 14, 2024
New York, NY

Women Leaders in Consulting Awards honors the industry standouts and rising stars who are making a mark within the profession.


Learn More
November 18, 2024 - November 19, 2024
New York, NY

Join General Counsel and Senior Legal Leaders at the Premier Forum Designed For and by General Counsel from Fortune 1000 Companies


Learn More

General Statement of DutiesPerforms legal work involving full litigation of all types of matters both for and against the Town, including al...


Apply Now ›

Shipman & Goodwin LLP is seeking a attorney to expand our national commercial real estate lending practice. Candidates should have a mi...


Apply Now ›

Health Law Associate CT Shipman is seeking an associate to join our national longstanding health law practice. Candidates must have t...


Apply Now ›