People v. McDonald

• Citation: 2013 N.Y. Slip Op. 06485,110 A.D.3d 1490,972 N.Y.S.2d 803
• Parties: The PEOPLE of the State of New York, Respondent, v. Patrick E. MCDONALD, Defendant–Appellant.
• Decision Date: 04 October 2013
• Court: New York Supreme Court Appellate Division

110 A.D.3d 1490

972 N.Y.S.2d 803

2013 N.Y. Slip Op. 06485

The PEOPLE of the State of New York, Respondent,

v.Patrick E. MCDONALD, Defendant–Appellant.

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

Oct. 4, 2013.

Leanne Lapp, Public Defender, Canandaigua (Cara A. Waldman of Counsel), for Defendant–Appellant.

R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of Counsel), for Respondent.

PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO AND WHALEN, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon his plea of guilty of four counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ). Defendant's contention that his plea was not knowingly, voluntarily, and intelligently entered is unpreserved for our review because he did not move to withdraw the plea or to vacate the judgment of conviction ( see People v. Davis, 99 A.D.3d 1228, 1229, 951 N.Y.S.2d 808,lv. denied

20 N.Y.3d 1010, 960 N.Y.S.2d 353, 984 N.E.2d 328). Defendant's further contention that County Court erred in refusing to suppress the identification made by a confidential informant from a photo array is also unpreserved for our review ( see People v. Cruz, 89 A.D.3d 1464, 1465, 932 N.Y.S.2d 650,lv. denied18 N.Y.3d 993, 945 N.Y.S.2d 647, 968 N.E.2d 1003), and in any event that contention is without merit.

We reject defendant's contention that the bargained-for sentence is unduly harsh and severe ( see generally People v. Santiago, 1 A.D.3d 957, 957, 767 N.Y.S.2d 322,lv. denied1 N.Y.3d 601, 776 N.Y.S.2d 232, 808 N.E.2d 368). Defendant correctly contends, however, that the uniform sentence and commitment sheet fails to specify whether that sentence is to run concurrently with or consecutively to the sentences imposed for crimes charged in a separate superior court information (SCI), to which he also pleaded guilty. The uniform sentence and commitment sheet therefore must be amended in accordance with the court's directive at sentencing, i.e., to reflect that the sentence pertaining to the SCI is to be served consecutively to the sentence imposed herein ( see People v. Jackson, 108 A.D.3d 1079, 1081, 968 N.Y.S.2d 789).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.