People v. Patel

• Decision Date: 15 June 2010
• Citation: 74 A.D.3d 1098,904 N.Y.S.2d 99
• Parties: The PEOPLE, etc., respondent, v. Vinod PATEL, appellant.
• Court: New York Supreme Court — Appellate Division

904 N.Y.S.2d 99

74 A.D.3d 1098

The PEOPLE, etc., respondent,

v.Vinod PATEL, appellant.

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

June 15, 2010.

Mitchell Dranow, Mineola, N.Y., for appellant, and appellant pro se.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Donald Berk of counsel), for respondent.

PETER B. SKELOS, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, and JOHN M. LEVENTHAL, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Kase, J.), rendered January 11, 2007, convicting him of rape in the first degree, criminal sexual act in the first degree (two counts), and incest, upon his plea of guilty, and imposingsentence. The appeal brings up for review an order of protection issued at the time of sentencing.

ORDERED that the judgment is affirmed.

The defendant's contention that his plea was not knowing and voluntary is unpreserved for appellate review since he failed to move to withdraw his plea ( see CPL 470.05[2]; People v. Johnson, 73 A.D.3d 951, 899 N.Y.S.2d 875; People v. Vasquez, 40 A.D.3d 1134, 837 N.Y.S.2d 693; People v. Wilson, 37 A.D.3d 744, 745, 828 N.Y.S.2d 910). The narrow exception to the preservation rule, which arises when the defendant's plea recitation of the facts underlying the crime casts significant doubt on the defendant's guilt or otherwise calls into question the voluntariness of the plea ( see People v. Lopez, 71 N.Y.2d 662, 529 N.Y.S.2d 465, 525 N.E.2d 5), is inapplicable in this case. In any event, the record of the plea proceeding establishes that the plea was knowing and voluntary ( see People v. Elcine, 43 A.D.3d 1176, 1177, 843 N.Y.S.2d 343).

The defendant has no basis to complain about the length of the sentence imposed, since the sentence was part of the negotiated plea bargain ( People v. Gheradi, 68 A.D.3d 892, 893, 890 N.Y.S.2d 122; People v. Rodriguez, 32 A.D.3d 481, 819 N.Y.S.2d 482; People v. Kazepis, 101 A.D.2d 816, 817, 475 N.Y.S.2d 351). In any event, the sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

Contrary to the defendant's contention, the Supreme Court did not improvidently exercise its discretion in determining the duration of the final order of protection entered against him ( see CPL 530.12[5] ).

Under the circumstances, the minimum period of postrelease supervision (hereinafter PRS) that the sentencing court could have imposed was 2 1/2 years ( see Penal Law § 70.45[2][f] ). Contrary to the defendant's contention, the Supreme Court did not misapprehend its sentencing discretion with respect to that period ( cf. People v. Britt, 67 A.D.3d 1023, 1024, 888 N.Y.S.2d 761). Moreover, the defendant specifically agreed to the imposed term of PRS during the plea proceeding.

By pleading guilty, the defendant forfeited his claim of ineffective assistance of counsel, raised in his supplemental pro se brief, to the extent that it does not directly involve the plea bargaining process ( see People v. Perazzo, 65 A.D.3d 1058, 886 N.Y.S.2d 43). Furthermore, thedefendant's claim is based partially on matter dehors the record, which cannot be reviewed on direct appeal ( see People v. Haynes, 70 A.D.3d 718, 719, 893 N.Y.S.2d 284; People v. Rodriguez, 32 A.D.3d 481, 819 N.Y.S.2d 482). To the extent that the claim can be reviewed on this appeal, the record reveals that the attorney who represented the defendant during the plea proceeding provided him with effective assistance ( see ...