People v. Mosley

• Decision Date: 11 February 2010
• Parties: The PEOPLE of the State of New York, Respondent,v.Manuel MOSLEY, Appellant.
• Court: New York Supreme Court — Appellate Division

70 A.D.3d 1126
896 N.Y.S.2d 185
2010 N.Y. Slip Op. 01026

The PEOPLE of the State of New York, Respondent,
v.
Manuel MOSLEY, Appellant.

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

Feb. 11, 2010.

[896 N.Y.S.2d 185]

Gregory T. Rinckey, Albany, for appellant.Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.Before: CARDONA, P.J., PETERS, SPAIN, STEIN and GARRY, JJ.PETERS, J.

[70 A.D.3d 1126] Appeal from a judgment of the County Court of Warren County (Hall, J.), rendered January 28, 2009, which resentenced defendant following his conviction upon his plea of guilty of the crimes of criminal sale of a controlled substance in the third degree and attempted assault in the second degree.

Defendant pleaded guilty to criminal sale of a controlled substance in the third degree and attempted assault in the second

[896 N.Y.S.2d 186]

degree. He was sentenced in accordance with the negotiated plea agreement to 11 years in prison and three years of postrelease supervision for the criminal sale conviction and 2 to 4 years in prison for the attempted assault conviction, with the prison terms ordered to run concurrently. On appeal, this Court ruled that defendant had not been properly sentenced as a second felony offender because the mandates of CPL 400.21 had not been satisfied (54 A.D.3d 1098, 1099, 863 N.Y.S.2d 846 [2008] ). Consequently, the sentence was vacated and the matter remitted to County Court for resentencing ( id.). After the People properly filed a second felony offender statement pursuant to CPL 400.21, County Court resentenced defendant as a second felony offender to the agreed-upon, aggregate 11–year prison [70 A.D.3d 1127] term followed by three years of postrelease supervision. Defendant appeals.

We note preliminarily that defendant overtly thwarted his attorney's attempt to file a motion to withdraw his plea and repeatedly insisted on being sentenced in accordance with the negotiated plea agreement ( see generally People v. Ruddy, 51 A.D.3d 1134, 1135, 856 N.Y.S.2d 741 [2008], lv. denied 12 N.Y.3d 787, 879 N.Y.S.2d 64, 906 N.E.2d 1098 [2009] ). Turning to the merits, contrary to defendant's protestations otherwise, “a predicate felon is precluded from being sentenced as a first time offender regardless of the [People's failure] to file the predicate felony statement” ( People v. May, 180 A.D.2d 974, 974, 580 N.Y.S.2d 556 [1992] [internal quotation marks and citation omitted] )....