MCDONALD, PATRICK E., PEOPLE v ( 2013 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1010
KA 11-01836
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
PATRICK E. MCDONALD, DEFENDANT-APPELLANT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (CARA A. WALDMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Ontario County Court (William F.
Kocher, J.), rendered July 7, 2011. The judgment convicted defendant,
upon his plea of guilty, of criminal sale of a controlled substance in
the third degree (four counts).
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of four counts of criminal sale of a
controlled substance in the third degree (Penal Law § 220.39 [1]).
Defendant’s contention that his plea was not knowingly, voluntarily,
and intelligently entered is unpreserved for our review because he did
not move to withdraw the plea or to vacate the judgment of conviction
(see People v Davis, 99 AD3d 1228, 1229, lv denied 20 NY3d 1010).
Defendant’s further contention that County Court erred in refusing to
suppress the identification made by a confidential informant from a
photo array is also unpreserved for our review (see People v Cruz, 89
AD3d 1464, 1465, lv denied 18 NY3d 993), and in any event that
contention is without merit.
We reject defendant’s contention that the bargained-for sentence
is unduly harsh and severe (see generally People v Santiago, 1 AD3d
957, 957, lv denied 1 NY3d 601). Defendant correctly contends,
however, that the uniform sentence and commitment sheet fails to
specify whether that sentence is to run concurrently with or
consecutively to the sentences imposed for crimes charged in a
separate superior court information (SCI), to which he also pleaded
guilty. The uniform sentence and commitment sheet therefore must be
amended in accordance with the court’s directive at sentencing, i.e.,
to reflect that the sentence pertaining to the SCI is to be served
consecutively to the sentence imposed herein (see People v Jackson,
-2- 1010
KA 11-01836
108 AD3d 1079, 1081).
Entered: October 4, 2013 Frances E. Cafarell
Clerk of the Court