GALBERTH, GREGORY, PEOPLE v ( 2017 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
628
KA 15-01969
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, CURRAN, AND TROUTMAN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
GREGORY GALBERTH, DEFENDANT-APPELLANT.
NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW (GREGORY A. KILBURN OF
COUNSEL), FOR DEFENDANT-APPELLANT.
DONALD G. O’GEEN, DISTRICT ATTORNEY, WARSAW (ERIC R. SCHIENER OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Wyoming County Court (Michael M.
Mohun, J.), rendered August 12, 2015. The judgment convicted
defendant, upon his plea of guilty, of attempted assault in the second
degree (two counts).
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a plea
of guilty of two counts of attempted assault in the second degree
(Penal Law §§ 110.00, 120.05 [7]), defendant contends that County
Court erred in imposing a sentence that was different from the
sentence promised in the negotiated plea agreement without first
affording him the opportunity to withdraw his plea.
At the time defendant entered his plea, the terms of the plea
agreement provided that he would be sentenced to two to four years of
incarceration for the two crimes and that the sentences for the two
counts would run concurrently with each other as well as with an
undischarged term of imprisonment (see Penal Law § 70.25 [5] [c]). At
sentencing, however, defense counsel requested a conference with the
court and, following that off-the-record discussion, a recess was
taken. When the case was recalled, defense counsel stated that
defendant’s “release dates would be shorter, they’d be sooner, if
[defendant] were to be sentenced to an indeterminate term of one-and-
a-half to three consecutive to his current term.” Defense counsel
also noted, however, that defendant’s parole eligibility date would be
extended. At defense counsel’s request, the court agreed to sentence
defendant to two terms of incarceration of 1½ to 3 years, to run
concurrently with each other but consecutively to the undischarged
term of imprisonment.
-2- 628
KA 15-01969
We agree with defendant that, even assuming, arguendo, his waiver
of the right to appeal is valid, it would not preclude his challenge
to the modified sentence (see People v Donnelly, 80 AD3d 797, 798;
People v Baxter, 302 AD2d 950, 951, lv denied 99 NY2d 652).
Nevertheless, we agree with the People that defendant is precluded
from challenging the modification to the sentence. Defendant, through
counsel, requested the change in sentence and, when questioned about
that change, did not object to it. In our view, defendant waived his
current challenge to the modified sentence. He intentionally
relinquished a known right, i.e., the right to be sentenced in
accordance with the original terms of the plea agreement (see
generally People v Ahmed, 66 NY2d 307, 311, rearg denied 67 NY2d 647,
citing Johnson v Zerbst, 304 US 458, 464-465; People v Simmons, 167
AD2d 924, 924, lv denied 77 NY2d 843).
In any event, we conclude that defendant’s contention is not
preserved for our review, and we decline to exercise our power to
review it as a matter of discretion in the interest of justice (see
CPL 470.15 [3] [c]). Defendant had ample time and opportunity to
preserve his contention, i.e., by objecting or moving to withdraw his
plea at the time of sentencing or by thereafter moving to vacate his
conviction, but he failed to do so (see People v Sepulveda, 198 AD2d
66, 66, lv denied 82 NY2d 930; cf. People v Rivera, 126 AD3d 728, 729,
lv denied 25 NY3d 1206).
Entered: April 28, 2017 Frances E. Cafarell
Clerk of the Court