People v. Cullum

• Decision Date: 27 March 2012
• Citation: 93 A.D.3d 856,940 N.Y.S.2d 872,2012 N.Y. Slip Op. 02315
• Parties: The PEOPLE, etc., respondent, v. Taiquan CULLUM, appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02315

93 A.D.3d 856

940 N.Y.S.2d 872

The PEOPLE, etc., respondent,

v.Taiquan CULLUM, appellant.

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

March 27, 2012.

Marianne Karas, Armonk, N.Y., for appellant.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Donald Berk of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Nassau County (Kase, J.), rendered February 15, 2011, convicting him of criminal sale of a controlled substance in the fifth degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that his plea of guilty was not knowingly, voluntarily, and intelligently made is unpreserved for appellate review, since he did not move to withdraw his plea on this ground prior to the imposition of sentence ( see CPL 220.60[3], 470.05[2]; People v. Clarke, 93 N.Y.2d 904, 906, 690 N.Y.S.2d 501, 712 N.E.2d 668; People v. Hayes, 91 A.D.3d 792, 936 N.Y.S.2d 902; People v. Kulmatycski, 83 A.D.3d 734, 920 N.Y.S.2d 670; People v. Rusielewicz, 45 A.D.3d 704, 846 N.Y.S.2d 243). In any event, the record before us does not support the defendant's contention that his plea was not knowing, voluntary, and intelligent ( see People v. Fiumefreddo, 82 N.Y.2d 536, 605 N.Y.S.2d 671, 626 N.E.2d 646; People v. Harris, 61 N.Y.2d 9, 471 N.Y.S.2d 61, 459 N.E.2d 170).

The defendant's challenge to the procedure by which he was sentenced as a second felony offender ( see CPL 400.21) is unpreserved for appellate review ( see People v. Smith, 73 N.Y.2d 961, 962–963, 540 N.Y.S.2d 987, 538 N.E.2d 339; People v. Jackson, 87 A.D.3d 552, 553–554, 928 N.Y.S.2d 58; People v. Carrion, 65 A.D.3d 693, 884 N.Y.S.2d 483; People v. Lopez, 49 A.D.3d 899, 900, 854 N.Y.S.2d 500). In any event, the challenge is without merit, since the defendant admitted that he was the person convicted of the predicate felony and there was no indication that he contemplated a challenge of the constitutionality of his prior conviction ( see CPL 400.21[7][b]; *873 People v. McAllister, 47 A.D.3d 731, 731–732, 850 N.Y.S.2d 495; People v. Flores, 40 A.D.3d 876, 878, 836 N.Y.S.2d 273; People v. Hickman, 276 A.D.2d 563, 564, 714 N.Y.S.2d 508).

DILLON, J.P., BALKIN, BELEN and AUSTIN, JJ., concur.