People v. Williams
| Decision Date | 31 May 2011 |
| Parties | The PEOPLE, etc., respondent,v.Josh WILLIAMS, appellant. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Salvatore C. Adamo, New York, N.Y., for appellant.Thomas J. Spota, District Attorney, Riverhead, N.Y. (Sandra Courbois of counsel), for respondent.MARK C. DILLON, J.P., JOSEPH COVELLO, RUTH C. BALKIN, and PLUMMER E. LOTT SHERI S. ROMAN, JJ.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Braslow, J.), rendered July 6, 2009, convicting him of attempted burglary in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
At the plea proceeding, the County Court outlined the terms of the plea arrangement, and promised that it would issue what it termed a “violent felony override” to make the defendant eligible for various programs of the Department of Correctional Services ( see People v. Cumberbatch, 24 Misc.3d 412, 884 N.Y.S.2d 612; cf. 7 NYCRR 1900.4[c][1][iii] ). The defendant agreed to those terms and, in response to the County Court's question, stated that he was pleading guilty to attempted burglary in the second degree under the first count of the indictment. The defendant allocuted to the voluntariness of the plea. The County Court thereafter asked the defendant if anyone had made any promises other than what the County Court had already outlined. The defendant responded, “I would just ask for the recommendation of Shock [incarceration] program.” The County Court said, The defendant then admitted facts constituting the crime to which he was pleading guilty, and he waived his right to appeal. In fact, the defendant was not eligible for the shock incarceration program (Correction Law article 26–A), and the “violent felony override” could not affect that status ( see Correction Law § 865[1] ).
The defendant contends that his plea of guilty was not knowing, voluntary, and intelligent because the County Court impliedly promised that he would be admitted to the shock incarceration program ( see Correction Law article 26–A). Although the claim survives the defendant's otherwise valid waiver of his right to appeal ( see People v. Morrow, 48 A.D.3d 704, 705, 852 N.Y.S.2d 327; People v. Stewart, 30 A.D.3d 624, 816 N.Y.S.2d 381), it is without merit. Examination of the plea transcript makes clear that neither the defendant's eligibility for the shock incarceration program ( see Correction Law § 865[1] ), nor his ultimate admission to that program was a condition of the plea ( see People v. Martinez, 56 A.D.3d 800, 867 N.Y.S.2d 692; People v. Taylor, 284 A.D.2d 573, 574, 726 N.Y.S.2d 169; cf. People v. Vanguilder, 32 A.D.3d 1110, 1110–1111, 821 N.Y.S.2d 492; People v. Christian, 158 A.D.2d 705, 705–706, 552 N.Y.S.2d 155).
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