People v. Gutierrez

• Decision Date: 08 November 2007
• Docket Number: 100575.
• Citation: People v. Gutierrez, 45 AD3d 971, 844 N.Y.S.2d 514, 2007 NY Slip Op 8309 (N.Y. App. Div. 2007)
• Court: New York Supreme Court — Appellate Division
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN GUTIERREZ, Appellant.

45 A.D.3d 971

844 N.Y.S.2d 514

2007 NY Slip Op 08309

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN GUTIERREZ, Appellant.

100575.

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

Decided November 8, 2007.

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered August 4, 2006, convicting defendant upon his plea of guilty of the crimes of criminal possession of a controlled substance in the first degree, criminal possession of a weapon in the third degree and conspiracy in the sixth degree.

Peters, J.

In satisfaction of an eight-count indictment stemming from the seizure of a handgun and quantities of cocaine, marihuana and ecstacy from the residence of defendant and his codefendant, defendant pleaded guilty to the crimes of criminal possession of a controlled substance in the first degree and criminal possession of a weapon in the third degree agreeing that his respective prison sentences would be 10 years with a term of postrelease supervision and 2 1/3 to 6 years, and he waived his right to appeal. While in jail awaiting sentencing, defendant and his codefendant were caught attempting to smuggle contraband into the jail and, at sentencing on the original two counts, defendant pleaded guilty to an additional misdemeanor count in satisfaction of charges arising from that incident and also consented to an increase in the previously agreed-upon sentences for the original two counts. County Court then sentenced defendant to, among other things, concurrent terms of imprisonment of 13 years to be followed by five years of postrelease supervision on the charge of criminal possession of a controlled substance in the first degree, 2 1/3 to 7 years on the charge of criminal possession of a weapon in the third degree and 30 days for the misdemeanor charge. Defendant now appeals.

Initially, we note that, inasmuch as he has failed to move to withdraw his plea or vacate the judgment of conviction, defendant's challenge to the voluntariness of his plea is unpreserved for our review (see People v Phillips, 41 AD3d 969, 969-970 [2007]; People v Daniels, 16 AD3d 780, 780 [2005]; People v Rich, 10 AD3d 739, 740 [2004]). In any event, if we were to address defendant's contention we would find it to be without merit. A review of the transcript of the plea allocution reveals that defendant was fully apprised of his rights and the ramifications of pleading guilty and affirmatively communicated to County Court his understanding and desire to plead guilty. Thus, we are satisfied that defendant's plea was knowing, intelligent and voluntary (see People v Daniels, 16 AD3d at 780; People v Rich, 10 AD3d at 740). Furthermore, in light of defendant's express denial upon questioning by County Cour...