People v. Bonner

• Decision Date: 22 September 2005
• Docket Number: 14857.
• Citation: 802 N.Y.S.2d 263,2005 NY Slip Op 06819,21 A.D.3d 1184
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. IVAN BONNER, Also Known as IVAN VONNER, Appellant.
• Court: New York Supreme Court — Appellate Division

21 A.D.3d 1184

802 N.Y.S.2d 263

2005 NY Slip Op 06819

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. IVAN BONNER, Also Known as IVAN VONNER, Appellant.

14857.

Appellate Division of the Supreme Court of the State of New York, Third Department.

September 22, 2005.

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered May 27, 2003, convicting defendant upon his plea of guilty of the crime of robbery in the second degree.

CREW III, J.P.

Defendant was charged in a one-count indictment with the crime of robbery in the second degree. Pursuant to a plea bargain wherein it was agreed that County Court would consider the presentence investigation report and any information presented by counsel prior to imposing sentence and that neither the court nor the People would seek to have defendant classified as a persistent felony offender or a persistent violent felony offender, defendant pleaded guilty to the crime of robbery in the second degree and waived his right to appeal. County Court subsequently sentenced defendant as a second felony offender to a term of imprisonment of 14 years, with a period of five years of postrelease supervision, and imposed a mandatory surcharge of $210. Defendant now appeals.

Defendant contends that pursuant to this Court's decision in People v. Goss (286 AD2d 180 [2001]), his sentence must be vacated because he was not advised prior to pleading guilty that the sentence imposed would include a period of postrelease supervision and a surcharge. However, the rule set forth in Goss applies to situations in which the defendant was "deprived of the benefit of his [or her] bargain when the period of postrelease supervision was automatically added to the determinate term" agreed to (People v. Jachimowicz, 292 AD2d 688, 689 [2002]; see People v. Van Deusen, 19 AD3d 747, 748 [2005]). Here, defendant was not promised a specific sentence; he was only assured that County Court would give fair consideration to all of the information before it in imposing sentence and that he would not be sentenced as a persistent felony offender or persistent violent felony offender. Thus, the imposition of a period of postrelease supervision could not have had any impact on his decision to plead guilty (see People v. Munck, 4 AD3d 627, 628 [2004], lv denied 2 NY3d 803 [2004]). Moreover, imposition of a mandatory surcharge does not warrant setting aside defendant's sentence (see People v. Neu, 1 AD3d 798, 798 [2003]; see also People v. Prihett, 279 AD2d 335, 335 [2001]).

In light of defendant's knowing, voluntary and intelligent plea and waiver of his right to appeal, we will not consider his argument that the indictment should be dismissed because he was not given an opportunity to testify before the grand jury (see ...