People v. Dove

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: MERCURE
• Citation: People v. Dove, 654 N.Y.S.2d 40, 236 A.D.2d 644 (N.Y. App. Div. 1997)
• Decision Date: 06 February 1997
• Parties: The PEOPLE of the State of New York, Respondent, v. Donald M. DOVE, Appellant.

Page 40

654 N.Y.S.2d 40

236 A.D.2d 644

The PEOPLE of the State of New York, Respondent, v. Donald M. DOVE, Appellant.

Supreme Court, Appellate Division Third Department.

Feb. 6, 1997.

Cynthia Feathers, Saratoga Springs, for appellant.

Gerald F. Mollen, District Attorney (Mary Anne Lehmann, of counsel), Binghamton, for respondent.

Before CARDONA, P.J., and MERCURE, WHITE, YESAWICH and PETERS, JJ.

MERCURE, Justice.

Appeal from a judgment of the County Court of Broome County (Mathews, J.), rendered October 27, 1993, convicting defendant upon his plea of guilty of the crimes of assault in the second degree, criminal possession of a weapon in the third degree and criminal possession of a controlled substance in the third degree.

In satisfaction of three indictments containing four counts, defendant pleaded guilty to assault in the second degree, criminal possession of a weapon in the third degree and criminal possession of a controlled substance in the third degree. As part of the plea agreement, defendant was to be sentenced as a second felony offender to concurrent prison terms of 2 1/2 to 5 years on the assault charge and 4 1/2 to 9 years on the drug charge. It was also agreed that the weapons charge would be dismissed if defendant appeared on the scheduled sentencing date. Defendant, however, failed to appear at sentencing. County Court then imposed separate prison terms of 2 1/2 to 5 years on the assault and weapons charges, to be served consecutively, and 10 to 20 years on the drug charge, to be served concurrently with the other two sentences.

On appeal, defendant contends that his guilty plea was not properly entered. However, because defendant never moved to withdraw his plea or vacate the judgment of conviction, he cannot now challenge the sufficiency of his plea (see, People v. Villafane, 216 A.D.2d 605, 627 N.Y.S.2d 583, lv denied 88 N.Y.2d 996, 649 N.Y.S.2d 403, 672 N.E.2d 629). In any event, the transcript of the plea allocution reveals that defendant knowingly and voluntarily entered his plea following a sufficient inquiry by County Court, during which time defendant admitted his guilt to the requisite elements of the crimes charged (see, People v. Sloan, 228 A.D.2d 975, 645 N.Y.S.2d 336, lv denied 88 N.Y.2d 994, 649 N.Y.S.2d 401, 672 N.E.2d 627).

We also reject defendant's contention that the terms of imprisonment were harsh and excessive. Defendant has an extensive criminal record. In addition, he was specifically warned at the...