People v. Clerveau

• Decision Date: 11 July 2019
• Docket Number: 109317
• Citation: 174 A.D.3d 1066,104 N.Y.S.3d 767
• Parties: The PEOPLE of the State of New York, Respondent, v. Christopher CLERVEAU, Appellant.
• Court: New York Supreme Court — Appellate Division

174 A.D.3d 1066
104 N.Y.S.3d 767

The PEOPLE of the State of New York, Respondent,
v.
Christopher CLERVEAU, Appellant.

109317

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

Calendar Date: June 3, 2019
Decided and Entered: July 11, 2019

Craig S. Leeds, Albany, for appellant.

Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri of counsel), for respondent.

Before: Garry, P.J., Lynch, Clark, Devine and Aarons, JJ.

MEMORANDUM AND ORDER

Lynch, J.

174 A.D.3d 1066

In August 2016, defendant was jointly indicted with six others and he was charged with one count of criminal enterprise, 30 counts involving the unlawful possession and sale of heroin and five counts of criminal sale of a controlled substance in or near school grounds. The charged activity took place between April 2016 and July 2016 and was based on a theory of assessorial liability. During an appearance on October 18, 2016, the People offered a plea agreement that would require defendant to plead guilty to the enterprise corruption charge and one count of criminal sale of a controlled substance in or near school grounds in exchange for a total

104 N.Y.S.3d 769

prison exposure of nine years. Defendant noted that the offer was less than the initial 12–year offer, but raised a concern that his white codefendants were offered significantly less prison time.¹ County Court granted defendant's request for a few days to consider the offer. On October 21, 2016, defendant accepted a new offer that capped his total prison sentence at eight years. Defendant then pleaded guilty to the two charges and waived his right to appeal. He was thereafter sentenced to the negotiated prison term of eight years and two years of postrelease supervision on the criminal sale conviction and a concurrent prison term of 2 to 6 years on the enterprise corruption conviction. Defendant appeals.

We affirm. Although defendant's challenge to the voluntariness of his plea is not precluded by his unchallenged appeal waiver, the record does not reflect that he made an appropriate postallocution motion despite having the opportunity to do so, and, as such, he failed to preserve this claim for our review (see People v. Williams, 27 N.Y.3d 212, 219–220, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ; People v. Taft, 169 A.D.3d 1266, 1267, 94 N.Y.S.3d 726 [2019] ;

174 A.D.3d 1067

People v. Norton, 164 A.D.3d 1502, 1503, 82 N.Y.S.3d 665 [2018], lv denied 32 N.Y.3d 1114, 91 N.Y.S.3d 365, 115 N.E.3d 637 [2018] ). Nor did defendant make any statements during the plea allocution that cast doubt upon his guilt or otherwise called into question the voluntariness of his plea (see People v. Williams, 27 N.Y.3d at 220, 32 N.Y.S.3d 17, 51 N.E.3d 528 ; People v. Henry, 166 A.D.3d 1213, 1214, 86 N.Y.S.3d 683 [2018], lv denied 33 N.Y.3d 949, 100 N.Y.S.3d 205, 123 N.E.3d 864 [2019] ). Were this issue before us, we would nevertheless find that it lacks merit. Accounting for the new reduced term of eight years, County Court confirmed that the sentencing structure would mirror the actual sentence. Defendant acknowledged that he understood. Although defendant stated that he felt forced to take the plea or face a far lengthier prison term, such situational pressure does not constitute undue duress, and defendant acknowledged that no one threatened him to take the plea rather than exercise his right to...