People v. Wiggins

• Decision Date: 03 October 2019
• Docket Number: 109508
• Citation: 176 A.D.3d 1255,111 N.Y.S.3d 132
• Parties: The PEOPLE of the State of New York, Respondent, v. Matthew WIGGINS, Appellant.
• Court: New York Supreme Court — Appellate Division

176 A.D.3d 1255
111 N.Y.S.3d 132

The PEOPLE of the State of New York, Respondent,
v.
Matthew WIGGINS, Appellant.

109508

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

Calendar Date: September 6, 2019
Decided and Entered: October 3, 2019

111 N.Y.S.3d 133

Amanda FiggsGanter, Albany, for appellant.

James R. Farrell, District Attorney, Monticello (Kristin L. Hackett of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Lynch and Pritzker, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.

176 A.D.3d 1256

Appeal from a judgment of the County Court of Sullivan County (McGuire, J.), rendered January 13, 2017, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fourth degree.

When this matter was previously before us, we, among other things, reversed the judgment of conviction and remitted the matter for further proceedings ( 126 A.D.3d 1229, 4 N.Y.S.3d 404 [2015] ). Upon remittal, defendant pleaded guilty to criminal possession of a controlled substance in the fourth degree and waived his right to appeal. Prior to sentencing, defendant moved to withdraw his plea on the ground that he was unaware of the actual amount of time that he was required to serve in connection with a 2008 parole violation. County Court denied the motion¹ and, thereafter, sentenced defendant as a second felony offender to a prison term of 4 ½ years, followed by three years of postrelease supervision. Defendant appeals.²

Defendant's contention that the plea was not knowing, voluntary and intelligent because County Court failed to inform him of how his sentence would interact with any prior undischarged sentence stemming from a 2008 parole violation is not precluded by his unchallenged waiver of the right to appeal and is preserved by his unsuccessful motion to withdraw his guilty plea on that basis (see People v. Thomas , 158 A.D.3d 953, 953, 71 N.Y.S.3d 662 [2018], lv denied 31 N.Y.3d 1088, 79 N.Y.S.3d 110, 103 N.E.3d 1257 [2018] ; People v. Pixley , 150 A.D.3d 1555, 1556, 56 N.Y.S.3d 578 [2017], lv denied 30 N.Y.3d 952, 67 N.Y.S.3d 136, 89 N.E.3d 526 [2017] ). Defendant's contention is nevertheless without merit. Specifically, defendant asked whether the good time credit applied to the undischarged portion of his 2008 sentence in connection with an unrelated parole matter would be credited to the instant sentence. The matter was adjourned to provide defense counsel an opportunity to research the issue. Upon reconvening, defense counsel informed the court that the Department of Corrections and Community Services (hereinafter DOCCS) would not comment on the calculation of any sentence until defendant was received into its custody. Following an extensive discussion, the court informed defendant that any time previously served

111 N.Y.S.3d 134

in connection with the instant indictment would

176 A.D.3d 1257

be credited toward his sentence, but no representations were being made as to how DOCCS would calculate the instant sentence with regard to the 2008 parole matter, and that any potential error with regard to such calculation by DOCCS could be the subject of a CPLR article 78 proceeding. Defendant specifically acknowledged that the plea agreement did not contemplate any promises as to the ultimate calculation of his sentence as it pertained to the parole...