People v. Mimms

• Decision Date: 28 October 2020
• Docket Number: Ind. Nos. 17-00349, 17-00702,2018-13413,2018-13414
• Citation: 131 N.Y.S.3d 641 (Mem),187 A.D.3d 1215
• Parties: The PEOPLE, etc., respondent, v. Carl S. MIMMS, appellant.
• Court: New York Supreme Court — Appellate Division

187 A.D.3d 1215

131 N.Y.S.3d 641 (Mem)

The PEOPLE, etc., respondent,

v.Carl S. MIMMS, appellant.

2018-13413

2018-13414

Ind. Nos. 17-00349, 17-00702

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

Submitted - September 30, 2020

October 28, 2020

Philip H. Schnabel, Chester, NY, for appellant, and appellant pro se.

David M. Hoovler, District Attorney, Middletown, N.Y. (William C. Ghee and Robert H. Middlemiss of counsel), for respondent.

REINALDO E. RIVERA, J.P., JOSEPH J. MALTESE, BETSY BARROS, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

Appeals by the defendant from two judgments of the County Court, Orange County (Nicholas DeRosa, J., at plea; William DeProspo, J., at sentencing), both rendered February 14, 2018, convicting him of criminal possession of a controlled substance in the third degree under Indictment No. 17–00349 and assault in the second degree under Indictment No. 17–00702, upon his pleas of guilty, and imposing sentences.

ORDERED that the judgments are affirmed.

The defendant's contention that his pleas were not knowingly and voluntarily made based upon the County Court's imposition of an enhanced sentence is unpreserved for appellate review, as the defendant did not move to withdraw his pleas prior to being sentenced (see CPL 470.05[2] ; People v. Davis, 186 A.D.3d 852, 127 N.Y.S.3d 777 ).

In any event, the record is clear that the County Court warned the defendant that if he violated the terms of the plea agreement, which included not getting rearrested, the court would not be bound by the initial promised sentence. Based upon the defendant's arrest prior to being sentenced, the court could properly impose an enhanced sentence (see People v. Jenkins, 11 N.Y.3d 282, 288, 869 N.Y.S.2d 370, 898 N.E.2d 553 ; People v. Monk, 186 A.D.3d 623, 126 N.Y.S.3d 666 ).

The sentences imposed were not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).

RIVERA, J.P., MALTESE, BARROS, BRATHWAITE NELSON and IANNACCI, JJ., concur.