People v. Cariello

186 A.D.3d 726

127 N.Y.S.3d 335 (Mem)

The PEOPLE, etc., respondent,

v.Nicholas CARIELLO, appellant.

2017–02571

S.C.I. No. 871-16

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

Submitted - February 24, 2020

August 19, 2020

Thomas J. Butler, New York, NY, for appellant.

Timothy D. Sini, District Attorney, Riverhead, N.Y. (Alfred J. Croce and Thomas C. Costello of counsel), for respondent.

SHERI S. ROMAN, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Barbara Kahn, J.), rendered January 30, 2017, convicting him of rape in the third degree and forcible touching, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

On May 17, 2016, the defendant pleaded guilty to rape in the third degree and forcible touching and agreed, as part of the plea agreement, to abide by certain terms and conditions during a one-year period of interim probation. In the event that the defendant failed to comply with these conditions, he would be subjected to an enhanced sentence of one and one-half years of imprisonment followed by three years of postrelease supervision.

On June 15, 2016, in violation of the terms of the interim probation, the defendant was arrested and charged with two counts of criminal contempt in the first degree and two counts of menacing in the second degree. The defendant moved pursuant to CPL 220.60 to withdraw his plea of guilty. The defendant argued, among other things, that he was not properly advised of the terms and conditions of the interim probation. The County Court, without a hearing, denied the motion. Thereafter, on January 30, 2017, the court imposed an enhanced sentence of one and one-half years of imprisonment followed by three years of postrelease supervision.

The defendant contends that his plea was involuntary because his attorney and the County Court failed to adequately apprise him of the terms and conditions of the interim probation. A review of the plea colloquy reveals that the defendant was advised by the court of the terms and conditions of the interim probation, executed an acknowledgment of his receipt of these terms and conditions, and was informed that his failure to abide by such terms and conditions would result in the imposition of a prison sentence (see People v. Waite, 119 A.D.3d 1086, 1087, 990 N.Y.S.2d 126 ; People v. Wissert, 85 A.D.3d 1633, 924 N.Y.S.2d 909 ). Further, the defendant's claim that he did not understand the terms and conditions of the interim probation as a result of being denied effective assistance of counsel is belied by the defendant's admissions that he discussed the...