People v. Tuper

• Decision Date: 03 December 1998
• Parties: 1998 N.Y. Slip Op. 11,153 The PEOPLE of the State of New York, Respondent, v. Michael T. TUPER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 808

681 N.Y.S.2d 808

1998 N.Y. Slip Op. 11,153

The PEOPLE of the State of New York, Respondent, v. Michael T. TUPER, Appellant.

Supreme Court, Appellate Division,

Third Department.

Dec. 3, 1998.

Van Zwisohn, Clifton Park, for appellant.

Andrew G. Schrader, District Attorney, Malone, for respondent.

Before CREW, J.P., and WHITE, PETERS, CARPINELLO and GRAFFEO, JJ.

WHITE, Justice.

Appeal from a judgment of the County Court of Franklin County (Main Jr., J.), rendered September 15, 1997, convicting defendant upon his plea of guilty of three counts of the crime of burglary in the third degree.

Defendant waived indictment and pleaded guilty to three counts of burglary in the third degree in satisfaction of four superior court informations containing 20 felony counts and waived his right to appeal all issues except sentencing. In exchange, the People agreed to recommend a prison sentence of 2 to 6 years on each count. County Court, however, considering defendant's criminal history and his failure to appreciate the severity of his crimes, rejected the recommendation and sentenced defendant to consecutive prison terms of 2 1/3 to 7 years on each count. Defendant appeals.

We affirm. Initially, defendant contends that his guilty plea and waiver of appeal were not knowing, voluntary and intelligent because he was unaware that County Court could impose a more severe sentence than that recommended by the People. As defendant failed to move to withdraw his guilty plea or to vacate the judgment of conviction, he has failed to preserve this claim for our review (see, People v. Green, 249 A.D.2d 691, 671 N.Y.S.2d 777; People v Fuller, 245 A.D.2d 987, 667 N.Y.S.2d 126, lv. denied 91 N.Y.2d 941, 671 N.Y.S.2d 721, 694 N.E.2d 890). In any event, our review of the record discloses that defendant entered the guilty plea and waiver knowingly, voluntarily and intelligently. County Court explained the range of sentencing options available to it and defendant expressly acknowledged that the sentencing recommendation did not guarantee that a harsher sentence would not be imposed (see, People v. Hadsell, 249 A.D.2d 682, 671 N.Y.S.2d 553, lv. denied 92 N.Y.2d 852, 677 N.Y.S.2d 83, 699 N.E.2d 443). In addition, we note that the District Attorney at the time of sentencing confirmed his earlier recommendation and made no suggestion, implicit or otherwise, that a harsher sentence be imposed (compare, People v. Oakes, 252 A.D.2d 663, 675 N.Y.S.2d 407).

Furthermore, given the voluntary nature of defendant's guilty plea and waiver of appeal, his claim of ineffective assistance of counsel is also unpreserved for our review (see, People v. Johnson, 243 A.D.2d 997, 663 N.Y.S.2d 910, lv. denied 91 N.Y.2d 926, 670 N.Y.S.2d 408,...