COPES, BRETT E., PEOPLE v ( 2016 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1269
    KA 15-01395
    PRESENT: WHALEN, P.J., SMITH, CARNI, DEJOSEPH, AND CURRAN, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    BRETT E. COPES, DEFENDANT-APPELLANT.
    CHARLES A. MARANGOLA, MORAVIA, FOR DEFENDANT-APPELLANT.
    JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
    COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Cayuga County Court (Mark H.
    Fandrich, A.J.), rendered July 7, 2015. The judgment convicted
    defendant, upon his plea of guilty, of attempted criminal possession
    of a controlled substance in the third degree and criminally using
    drug paraphernalia in the second degree.
    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 attempted criminal possession of a
    controlled substance in the third degree (Penal Law §§ 110.00, 220.16
    [1]) and criminally using drug paraphernalia in the second degree
    (§ 220.50 [3]). Defendant does not challenge the validity of his
    waiver of the right to appeal, and his valid waiver encompasses his
    contention that the sentence is unduly harsh and severe (see People v
    Ruffin, 101 AD3d 1793, 1793, lv denied 21 NY3d 1019; People v Foster,
    281 AD2d 902, 902, lv denied 96 NY2d 862; see generally People v
    Lopez, 6 NY3d 248, 256).
    Defendant further contends that the court violated the terms of
    the plea agreement by failing to impose a sentence of parole
    supervision pursuant to CPL 410.91. Although that contention
    implicates the voluntariness of defendant’s guilty plea and therefore
    survives his waiver of the right to appeal (see People v Brady, 122
    AD3d 1009, 1010, lv denied 25 NY3d 1160), we conclude that it is
    without merit. The record establishes that the court did not promise
    defendant a sentence of parole supervision, but merely stated that it
    was willing to impose such a sentence if defendant was eligible for it
    (see People v Hernandez, 62 AD3d 1095, 1097, lv denied 13 NY3d 745;
    People v Carlton, 2 AD3d 1353, 1354, lv denied 1 NY3d 625; see also
    People v Hardy, 32 AD3d 1317, 1318, lv denied 7 NY3d 925). Inasmuch
    as defendant’s prior violent felony conviction rendered him ineligible
    -2-                          1269
    KA 15-01395
    for a sentence of parole supervision (see CPL 410.91 [2]), “there was
    no . . . unfulfilled sentencing promise” (Carlton, 2 AD3d at 1354; see
    People v Tallman, 92 AD3d 1082, 1083, lv denied 20 NY3d 1065). To the
    extent that defendant contends that the attorneys and the court
    assured him that he would be eligible for a parole supervision
    sentence, that contention is belied by his acknowledgment during the
    plea colloquy that no off-the-record promises had been made to induce
    him to plead guilty (see People v Sanchez, 184 AD2d 537, 538, lv
    denied 80 NY2d 909; see also Brady, 122 AD3d at 1010-1011).
    Entered:   December 23, 2016                   Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 15-01395

Filed Date: 12/23/2016

Precedential Status: Precedential

Modified Date: 12/23/2016