People v. Houston

173 A.D.3d 1061

100 N.Y.S.3d 873 (Mem)

The PEOPLE, etc., Respondent,

v.John T. HOUSTON, Appellant.

2018–03328

Ind. No. 282/17

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

Submitted—April 8, 2019

June 19, 2019

Salvatore C. Adamo, New York, NY, for appellant.

William V. Grady, District Attorney, Poughkeepsie, N.Y. (Bridget Rahilly Steller of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., HECTOR D. LASALLE, BETSY BARROS, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Dutchess County (Peter M. Forman, J.), rendered February 13, 2018, convicting him of criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that his plea of guilty was not knowingly, voluntarily, and intelligently made is unpreserved for appellate review since he did not move to withdraw his plea or vacate the judgment of conviction (see People v. Lopez, 71 N.Y.2d 662, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Harris, 169 A.D.3d 924, 92 N.Y.S.3d 667 ; People v. Saliani, 163 A.D.3d 854, 854, 80 N.Y.S.3d 471 ; People v. Hutter, 154 A.D.3d 776, 776, 63 N.Y.S.3d 391 ). In addition, "the exception to the preservation requirement does not apply here, because the defendant's plea allocution did not cast significant doubt upon his guilt, negate an essential element of the crime, or call into question the voluntariness of the plea" ( People v. Fontanet, 126 A.D.3d 723, 723, 2 N.Y.S.3d 371 ; see People v. Tyrell, 22 N.Y.3d 359, 364, 981 N.Y.S.2d 336, 4 N.E.3d 346 ; People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). In any event, the defendant's plea of guilty was knowingly, voluntarily, and intelligently made (see People v. Conceicao, 26 N.Y.3d 375, 23 N.Y.S.3d 124, 44 N.E.3d 199 ; People v. Harris, 61 N.Y.2d 9, 471 N.Y.S.2d 61, 459 N.E.2d 170 ). The defendant's contention that he "had no understanding that he was pleading guilty" was contradicted by the thorough plea colloquy (see People v. Ball, 129 A.D.3d 739, 8 N.Y.S.3d 919 ; People v. Wiedmer, 71 A.D.3d 1067, 896 N.Y.S.2d 686 ).

The defendant's contention that he did not receive the effective assistance of counsel because his counsel coerced him into pleading guilty is belied by his statements during the plea proceeding. The defendant acknowledged under oath that he was satisfied with his attorney's representation, that he had not been forced into pleading guilty, and that he was entering the plea freely and voluntarily (see People v. Vicente, 167 A.D.3d 951, 952, 90 N.Y.S.3d 106 ; People v. Ward, 140 A.D.3d 903, 904, 32 N.Y.S.3d 648 ; People v. Bennett, 115 A.D.3d 973, 974, 982 N.Y.S.2d 554 ; People v. Howard, 109 A.D.3d 487, 488, 970 N.Y.S.2d 86 ; People v. Caruso, 88 A.D.3d 809, 810, 930 N.Y.S.2d 668 ; People v. Duncan, 78 A.D.3d 1193, 1194, 912 N.Y.S.2d 283 ).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).

LEVENTHAL, J.P., LASALLE,...