People v. Benson

• Decision Date: 08 November 2012
• Citation: 953 N.Y.S.2d 380,2012 N.Y. Slip Op. 07338,100 A.D.3d 1108
• Parties: The PEOPLE of the State of New York, Respondent, v. Jason BENSON, Appellant.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 1108
953 N.Y.S.2d 380
2012 N.Y. Slip Op. 07338

The PEOPLE of the State of New York, Respondent,
v.
Jason BENSON, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 8, 2012.

[953 N.Y.S.2d 381]

Theresa M. Suozzi, Saratoga Springs, for appellant.

James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), for respondent.

Before: MERCURE, J.P., SPAIN, MALONE JR., KAVANAGH and EGAN JR., JJ.

EGAN JR., J.

[100 A.D.3d 1108]Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), entered May 19, 2011, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

In full satisfaction of a four-count indictment and other pending charges, defendant waived his right to appeal, pleaded guilty to criminal sale of a controlled substance in the third degree and thereafter was sentenced to the agreed-upon prison term of two years followed by two years of postrelease supervision. Defendant now appeals contending, among other things, that his plea was involuntary.

We affirm. Initially, to the extent that defendant challenges his waiver of the right to appeal, we are satisfied—based upon our review of the plea colloquy and the written waiver executed by defendant—that defendant was both apprised of and clearly understood the rights that he was forfeiting ( see People v. Santana, 95 A.D.3d 1503, 1503, 944 N.Y.S.2d 406 [2012];People v. Empey, 73 A.D.3d 1387, 1388, 901 N.Y.S.2d 756 [2010],lv. denied15 N.Y.3d 804, 908 N.Y.S.2d 164, 934 N.E.2d 898 [2010] ). Accordingly, we find defendant's waiver to be knowing, intelligent and voluntary.

As to the balance of defendant's claims, any assertion that his plea allocution was factually insufficient is foreclosed by his valid waiver of the right to appeal and, further, is unpreserved for our review as there is no indication on this record that defendant moved to withdraw his plea or vacate the underlying judgment of conviction ( see

[953 N.Y.S.2d 382]

People v. Flake, 95 A.D.3d 1371, 1372, 943 N.Y.S.2d 307 [2012],lv. denied19 N.Y.3d 973, 950 N.Y.S.2d 356, 973 N.E.2d 766 [2012];People v. Richardson, 83 A.D.3d 1290, 1291, 920 N.Y.S.2d 752 [2011],lv. denied17 N.Y.3d 821, 929 N.Y.S.2d 809, 954 N.E.2d 100 [2011] ). Although defendant's challenge to the voluntariness of his plea—INCLUDING HIS ASSERTION THAT THE PLEA WAS INDUCed by an unfulfilled promise that he would be admitted to a shock incarceration program—survives the appeal waiver ( see People v. Robinson, 86 A.D.3d 719, 720, 926 N.Y.S.2d 751 [2011],lv. denied19 N.Y.3d 966, 950 N.Y.S.2d 118, 973 N.E.2d 216 [2012];People v. Williams, 84 A.D.3d 1417, 1418, 924 N.Y.S.2d 539 [2011],lv. denied17 N.Y.3d 863, 932 N.Y.S.2d 28, 956 N.E.2d 809 [2011] ), defendant's arguments on this point are unpreserved absent evidence of an appropriate postallocution motion ( see People v. Taylor, 89 A.D.3d 1143, 1143–1144, 931 N.Y.S.2d 918 [2011];People v. Planty, 85 A.D.3d 1317, 1317–1318, 925 N.Y.S.2d 240 [2011],lv. denied17 N.Y.3d 820, 929 N.Y.S.2d 809, 954 N.E.2d 100 [2011] ). Moreover, the narrow exception to the preservation requirement is inapplicable here, as defendant did not make any statements during the course of the plea allocution that were inconsistent with his guilt or otherwise called into question the voluntariness of his plea ( see People v. Board, 75 A.D.3d 833, 833, 906 N.Y.S.2d 155 [2010];People v. Glynn, 73 A.D.3d 1290, 1291, 900 N.Y.S.2d 513 [2010] ). Were we to...