People v. Saletnik
| Decision Date | 02 May 2001 |
| Citation | 285 A.D.2d 665,728 N.Y.S.2d 248 |
| Parties | (A.D. 3 Dept. 2001) THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v ISAAC W. SALETNIK, Appellant. 12102 : THIRD JUDICIAL DEPARTMENT Calendar Date: |
| Court | New York Supreme Court — Appellate Division |
John A. Cirando, Syracuse, for appellant.
James E. Conboy, District Attorney (Pamela A. Sandy of counsel), Fonda, for respondent.
Before: Cardona, P.J., Crew III, Spain, Mugglin and Lahtinen, JJ.
Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered February 28, 2000, convicting defendant upon his plea of guilty of the crime of sexual abuse in the first degree.
Defendant was indicted in March 1999 for attempted rape in the first degree, two counts of burglary in the second degree and two counts of criminal mischief in the fourth degree stemming from an incident which occurred in January 1999 at the Garden Apartments in the City of Amsterdam, Montgomery County. Prior to his arraignment on the indictment, defendant's mental fitness to proceed was the subject of proceedings under CPL article 730 in local criminal court, resulting in a March 2, 1999 order of commitment by that court. On April 19, 1999, defendant was deemed to be no longer incapacitated and found fit to proceed. At his April 26, 1999 arraignment, defendant pleaded guilty to the lesser included crime of sexual abuse in the first degree in satisfaction of all the charges with the promise of a three-year determinate prison sentence. Prior to sentencing, County Court wrote to counsel indicating that, due to the contents of the presentence report, defendant's sentence would be increased to seven years, but that defendant would be permitted to withdraw his plea.
At defendant's initial sentencing hearing in June 1999, defense counsel requested an adjournment to discuss County Court's proposed seven-year sentence with defendant. On the adjourned date set for the sentencing hearing, defense counsel orally moved for an examination pursuant to CPL 730.30 to determine defendant's fitness to proceed. Upon examination, defendant was found to lack the capacity to understand the criminal proceedings and remained incapacitated until January 2000, when he again was deemed fit to proceed. Defendant thereafter was sentenced to four years in prison and a maximum of five years' postrelease supervision and waived his right to appeal. Defendant now appeals arguing that his guilty plea was not properly entered, he should have received the sentence promised in the original plea agreement, he received ineffective assistance of counsel and his sentence was harsh and excessive.
We turn first to defendant's challenge to the entry of his guilty plea. Although defendant's waiver of his right to appeal is not itself a bar to appellate review of his guilty plea (see, People v Tavares, 282 A.D.2d 880,N.Y.S.2d, generally a defendant must move to withdraw his plea pursuant to CPL 220.60 (3) or move to vacate the judgment of conviction pursuant to CPL article 440 in order to preserve this issue for our review (see, People v Johnson, 82 N.Y.2d 683, 685; People v Lopez, 71 N.Y.2d 662, 665; People v Hines, 277 A.D.2d 504, 505, lv denied 96 N.Y.2d 759,725 N.Y.S.2d 286, 748 N.E.2d 1082), unless the record reveals an exception to the preservation rule (see, People v Lopez, supra, at 666; People v Tavares, supra). Defendant made no such motion here nor do we find an exception to the preservation rule evident in the record. Nonetheless, on the facts presented here, we shall address the merits of defendant's claim in the interest of justice (see, CPL 470.15).
Our review of the record reveals that defendant's plea was knowingly, voluntarily and intelligently entered (see, e.g., People v Saitch, 260 A.D.2d 724, 725, lv denied 93 N.Y.2d 1006). Prior to defendant's guilty plea on April 26, 1999, County Court thoroughly explained to him the rights that he was giving up by entering a plea (see, People v Hadsell, 249 A.D.2d 682, 683, lv denied 92 N.Y.2d 852). At that time, County Court had before it defendant's CPL article 730 "Notification of Fitness to Proceed" dated April 19, 1999, and the underlying psychiatric report dated March 31, 1999, which found that defendant did not lack the capacity to understand the proceedings and was able to assist in his defense. Moreover, the court discussed with defendant and his counsel, on the record, the possible defense of mental disease or defect (Penal Law § 40.15) and the court was informed by defense counsel, in the presence of defendant, that defendant, his counsel and defendant's doctors had discussed that defense and that defendant did not wish to assert it (compare, People v Moore, 78 A.D.2d 997, 998; People v Bryant, 66 A.D.2d 786). Defendant, in response to inquiry by the court, stated that he did not have a defense, thereby evidencing a voluntary and knowing waiver of any defense to the charge of sexual abuse in the first degree.
Further, with respect to the factual deficiencies that defendant claims exist in his plea, "it is now well settled that where a defendant pleads guilty to a lesser crime than that charged in the indictment, a factual basis for such plea is not necessary" (People v Santmyer, A.D.2d, 724 N.Y.S.2d 365, 366; see, People v Evans, 269 A.D.2d 797, 798, lv denied 95 N.Y.2d 834). Consequently, we find no merit to defendant's challenges to his April 26, 1999 plea.
We do, however, find merit in defendant's challenge to his sentence, but for reasons other than asserted by defendant. Defendant claims that he was entitled to receive the three-year prison sentence agreed upon as part of his plea bargain, arguing that County Court should not have imposed the greater sentence of four years and should not have included the additional provisions of a permanent...
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