People v. Parker

173 A.D.3d 1557

104 N.Y.S.3d 390

The PEOPLE of the State of New York, Respondent,

v.Sheiquan PARKER, Appellant.

108456

110268

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

Decided and Entered: June 27, 2019

Calendar Date: June 6, 2019

Todd G. Monahan, Schenectady, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

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

MEMORANDUM AND ORDER

Garry, P.J. Appeals (1) from a judgment of the County Court of Schenectady County (Sypnewski, J.), rendered April 18, 2016, convicting defendant upon his plea of guilty of the crimes of attempted robbery in the second degree and attempted robbery in the third degree, and (2) by permission, from an order of said court, entered March 19, 2018 in Schenectady County, which denied defendant's motion pursuant to CPL 440.10 and 440.20 to vacate the judgment of conviction and to set aside the sentence, without a hearing.

Defendant was charged in a two-count indictment with attempted robbery in the third degree and attempted robbery in the second degree stemming from an incident wherein the victim was killed when defendant and others attempted to rob him of marihuana. Defendant entered into a written plea and cooperation agreement with the District Attorney's office, which provided that defendant agreed to plead guilty to the entire indictment and waive his right to appeal. If defendant, among other things, cooperated "fully and truthfully ... in the investigation and prosecution" of others involved in the robbery incident, he would be permitted to withdraw his guilty plea to attempted robbery in the second degree. The cooperation agreement specifically provided that the truthfulness of any statements and testimony by defendant was to be determined solely by the People and that, in the event that defendant was not cooperative, the People were not bound by the plea agreement. Defendant then pleaded guilty to the charges in the indictment and waived his right to appeal.

At sentencing, the People informed County Court that defendant had violated the plea agreement by providing inconsistent testimony before the grand jury and at the trial of his codefendant. Consequently, the court sentenced defendant, a second felony offender, to concurrent prison terms of seven years, followed by five years of postrelease supervision, for his conviction of attempted robbery in the second degree and 2 to 4 years for his conviction of attempted robbery in the third degree. Defendant's subsequent motion pursuant to CPL article 440 was denied without a hearing. Defendant appeals from the judgment of conviction and, by permission, the denial of his CPL article 440 motion.

We affirm. With regard to the direct appeal, defendant contends that County Court erred in not giving him an opportunity to withdraw his guilty plea after the People enforced the plea agreement against him. This claim is not preserved for our review as defendant did not object at sentencing or move to withdraw his guilty plea (see People v. Gonzalez , 159 A.D.3d 1135, 1135, 72 N.Y.S.3d 247 [2018] ).

To the extent that defendant challenges the sufficiency of the proof that he violated the terms of the plea agreement, it is without merit. The cooperation agreement specifically provided that defendant was required to cooperate "fully and truthfully ... in the investigation and prosecution" of others involved in the incident, and that the truthfulness of any of his statements and testimony would be determined by the People. The People informed County Court that defendant was not cooperative or truthful in the prosecution of his codefendant and provided specific, detailed examples of inconsistencies between his grand jury and trial testimonies regarding the underlying criminal activity that appeared to be an attempt to undermine, albeit unsuccessfully, the People's prosecution of his codefendant. The record reflects that defendant was aware that, if he violated the cooperation agreement, the People would not be bound by the plea bargain and that the court could impose...