People v. Smith

• Decision Date: 10 July 2014
• Citation: 988 N.Y.S.2d 724,2014 N.Y. Slip Op. 05217,119 A.D.3d 1088
• Parties: The PEOPLE of the State of New York, Respondent, v. Derrick SMITH, Also Known as GS, Appellant.
• Court: New York Supreme Court — Appellate Division

119 A.D.3d 1088

988 N.Y.S.2d 724

2014 N.Y. Slip Op. 05217

The PEOPLE of the State of New York, Respondent,

v.Derrick SMITH, Also Known as GS, Appellant.

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

July 10, 2014.

Brian M. Callahan, Schenectady, for appellant, and appellant pro se.

Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.

Before: PETERS, P.J., ROSE, EGAN JR., LYNCH and DEVINE, JJ.

PETERS, P.J.

Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered April 23, 2012, convicting defendant upon his plea of guilty of the crime of manslaughter in the first degree.

Defendant was charged in an indictment with murder in the second degree and two counts of criminal possession of a weapon in the second degree. After a jury trial had commenced, he pleaded guilty to manslaughter in the first degree and waived his right to appeal in exchange for a promised determinate prison sentence of between 15 and 20 years. County Court admonished defendant that as long as he remained trouble free and “there's no other issues between now and the sentencing as far as any accusations of tampering with witnesses ... or interfering in any other cases,” it would “consider that a big factor in getting [defendant] down towards the minimum end of the [plea bargain] range.”

While awaiting sentencing, defendant was indicted on various counts of conspiracy alleging that he had conspired to murder certain witnesses who testified at his trial and to intimidate a witness in another criminal action. At sentencing, the People asserted that defendant violated the terms of the plea agreement and sought an enhanced sentence of 25 years in prison. Following a hearing, County Court denied the People's application and sentenced defendant, consistent with the terms of the plea agreement, to 20 years in prison followed by five years of postrelease supervision. Defendant appeals.

Defendant argues that, in sentencing him to the maximum allowable term of imprisonment under the plea agreement, County Court improperly considered unreliable and inaccurate information regarding his postplea conduct. Inasmuch as this claim amounts to a challenge to the procedures utilized in determining his sentence and does not implicate the legality of the sentence or the power of the court to impose it, defendant's valid waiver of the right to appeal precludes our review of such claim ( see People v. Callahan, 80 N.Y.2d 273, 281, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992];People v. Rahim, 78 A.D.3d 1240, 1241, 910 N.Y.S.2d 288 [2010];People v. Hooten, 34 A.D.3d 941, 941, 823 N.Y.S.2d 304 [2006];People v. Andre L., 18 A.D.3d 575, 576, 795 N.Y.S.2d 263 [2005],lv. denied5 N.Y.3d 850, 806 N.Y.S.2d 170, 840 N.E.2d 139 [2005];People v. Hicks, 201 A.D.2d 831, 832, 608 N.Y.S.2d 543 [1994],lv. denied83 N.Y.2d 911, 614 N.Y.S.2d 393, 637 N.E.2d 284 [1994] ). Were we to consider the issue, we would find that the hearing conducted was sufficient to enable County Court to assure itself “ ‘that the information upon which it base[d] the sentence [was] reliable and accurate’ ” ( People v. Naranjo, 89 N.Y.2d 1047, 1049, 659 N.Y.S.2d 826, 681 N.E.2d 1272 [1997], quoting People v. Outley, 80 N.Y.2d 702, 712, 594 N.Y.S.2d 683, 610 N.E.2d 356 [1993];see People v. Rollins, 50 A.D.3d 1535, 1536, 856 N.Y.S.2d 417 [2008],lv. denied10 N.Y.3d 939, 862 N.Y.S.2d 345, 892 N.E.2d 411 [2008] ).

To the extent that defendant's ineffective assistance of counsel claim impacts the voluntariness of his plea and, therefore, survives his valid appeal waiver, it is nonetheless unpreserved for our review inasmuch as the record does not reveal that he made an appropriate postallocution motion ( see People v. Lohnes, 112 A.D.3d 1148, 1150, 976 N.Y.S.2d 719 [2013];People v. Moses, 110 A.D.3d 1118, 1118, 972 N.Y.S.2d 363 [2013];People v. Sczepankowski, 110 A.D.3d 1115, 1116, 972 N.Y.S.2d 358 [2013] ). Defendant's contention that his plea was...