People v. Henderson

• Decision Date: 26 November 1996
• Citation: 233 A.D.2d 253,650 N.Y.S.2d 640
• Parties: The PEOPLE of the State of New York, Respondent, v. Derrick HENDERSON, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 640

650 N.Y.S.2d 640

233 A.D.2d 253

The PEOPLE of the State of New York, Respondent, v. Derrick HENDERSON, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Nov. 26, 1996.

Karin R. Vandevenne, for Respondent.

Kannan Sundaram, for Defendant-Appellant.

Before MURPHY, P.J., and ROSS, TOM, MAZZARELLI and ANDRIAS, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (George Covington, J.), rendered June 30, 1994, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 7 to 14 years, unanimously affirmed.

Defendant's claim that his unawareness of the robing room Sandoval hearing and ruling rendered his plea not voluntary, knowing and intelligent because, had he been made aware, he would have proceeded to trial and, in the event of a guilty verdict, exploited the court's error in conducting the hearing in his absence, is without merit (cf., Lockhart v. Fretwell, 506 U.S. 364, 370, 113 S.Ct. 838, 843, 122 L.Ed.2d 180). By pleading guilty, defendant agreed to relinquish certain constitutional rights, among them being the right to confront witness and the right to a jury trial, and also the right to appeal. While a guilty plea does not forfeit certain fundamental rights and jurisdictional issues, the right to be present at a Sandoval hearing is not included as a fundamental constitutional right. In fact, the Court of Appeals has classified the right as a statutory right (see People v. Favor, 82 N.Y.2d 254, 604 N.Y.S.2d 494, 624 N.E.2d 631) and as such it does not survive a plea of guilty. Defendant's claim that his sentence is excessive was waived by his waiver of the right to appeal (People v. Cole, 199 A.D.2d 60, 605 N.Y.S.2d 243, lv. denied 83 N.Y.2d 803, 611 N.Y.S.2d 139, 633 N.E.2d 494), and, in any event, we perceive no abuse of sentencing discretion.