People v. Patterson

• Decision Date: 13 October 1994
• Citation: 617 N.Y.S.2d 221,208 A.D.2d 987
• Parties: The PEOPLE of the State of New York, Respondent, v. Frederick PATTERSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 221

617 N.Y.S.2d 221

208 A.D.2d 987

The PEOPLE of the State of New York, Respondent, v. Frederick PATTERSON, Appellant.

Supreme Court, Appellate Division Third Department.

Oct. 13, 1994.

James Rothe, Binghamton, for appellant.

Gerald F. Mollen, Dist. Atty. (Carol A. Cocchiola, of counsel), Binghamton, for respondent.

Before CARDONA, P.J., and MIKOLL, MERCURE, WHITE and CASEY, JJ.

CARDONA, Presiding Justice.

Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered October 28, 1992, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

Defendant was charged in a two-count indictment with criminal possession of a controlled substance in the third degree. On July 8, 1992, prior to the conclusion of a hearing to suppress physical evidence, defendant entered a counseled plea of guilty to the first count charging criminal possession of a controlled substance in the third degree, a class B felony. The plea was conditioned upon County Court's promise that should he appear for sentencing on August 17, 1992 and enter a plea of guilty under the second count to attempted criminal possession of a controlled substance in the third degree, a class C felony, he would be sentenced as a second felony offender to the statutory minimum of 3 to 6 years in prison and his guilty plea to criminal possession of a controlled substance in the third degree would be vacated. As a further condition of the plea, defendant also agreed to withdraw all motions previously filed.

On August 17, 1992, defendant appeared in County Court represented by new counsel who had filed a motion on defendant's behalf to withdraw his guilty plea. The proceedings were adjourned to October 27, 1992. On October 27, 1992, County Court denied defendant's motion to vacate and adjourned the matter to the following day to give defendant an opportunity to confer with his attorney in order to determine if he wished to proceed in accordance with the negotiated plea disposition of July 8, 1992. On October 28, 1992, in response to the court's further inquiry as to how he wished to proceed, defendant stated that he was "staying mute". County Court then proceeded to sentence defendant to 4 1/2 to 9 years in prison, the statutory minimum for a predicate felon convicted of criminal possession of a controlled substance in the third degree (see, Penal Law § 70.06). Defendant appeals.

Initially, we reject defendant's contention that County Court abused its discretion by denying his application to withdraw his plea. Here, the record confirms that "the plea was knowing and voluntary and was made without the protestation of innocence" (see, People v. Collins, 186 A.D.2d 298, 587 N.Y.S.2d 455; People v. Lynch, 156 A.D.2d 884, 884-886, 550 N.Y.S.2d 104, lv. denied 75 N.Y.2d 921, 555 N.Y.S.2d 40, 554 N.E.2d 77). Furthermore, "[a] sentencing court need not permit a defendant to withdraw a plea where, as here, the defendant himself has failed to fulfill an explicit condition underlying the sentence agreement" (People v. McDaniels, 111 A.D.2d 876, 877, 490 N.Y.S.2d 597; see, People v. Scott, 196 A.D.2d 921, 602 N.Y.S.2d 230; People v. Thompson, ...