People v. Sanders

203 A.D.3d 1403

161 N.Y.S.3d 856 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Jonathan J. SANDERS, Appellant.

112085

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

Calendar Date: February 16, 2022

Decided and Entered: March 17, 2022

Tracy L. Pugliese, Clinton, for appellant.

William G. Gabor, District Attorney, Wampsville (Robert A. Mascari of counsel), for respondent.

Before: Egan Jr., J.P., Aarons, Pritzker, Reynolds Fitzgerald and Ceresia, JJ.

MEMORANDUM AND ORDER

Aarons, J.

Appeal from a judgment of the County Court of Madison County (McDermott, J.), rendered July 31, 2019, convicting defendant upon his plea of guilty of the crime of criminal possession of stolen property in the fourth degree.

Defendant waived indictment and agreed to be prosecuted pursuant to two superior court informations – one charging him with burglary in the third degree, grand larceny in the fourth degree and criminal mischief in the third degree and the other charging him with criminal possession of stolen property in the fourth degree. In full satisfaction of both instruments, defendant pleaded guilty to criminal possession of stolen property in the fourth degree with the understanding that sentencing would be left to County Court's discretion – with a maximum potential term of imprisonment of 2 to 4 years. The plea agreement also required defendant to waive his right to appeal. Defendant's subsequent motion to withdraw his plea was denied, and County Court sentenced defendant – as a second felony offender – to a prison term of 1½ to 3 years. This appeal ensued.

We affirm. The People have advised this Court – and a review of the records of the Department of Corrections and Community Supervision confirms – that defendant was discharged from parole supervision in August 2021. Hence, defendant's claim that the sentence imposed is harsh and excessive is moot (see People v. Vittengl, 195 A.D.3d 1233, 1234, 145 N.Y.S.3d 868 [2021] ). In any event, defendant's challenge to the perceived severity of his sentence is precluded by his unchallenged appeal waiver (see People v. Brown, 197 A.D.3d 1440, 1440, 151 N.Y.S.3d 657 [2021] ).

To the extent that defendant's ineffective assistance of counsel claim impacts upon the voluntariness of his plea, such claim survives the uncontested appeal waiver and, further, was preserved by defendant's motion to withdraw his plea and corresponding request for new counsel (see People v. Khan, 139 A.D.3d 1261, 1264, 31 N.Y.S.3d 671 [2016], lvs denied 28 N.Y.3d 932, 934, 40 N.Y.S.3d 360, 63 N.E.3d 80 [2016] ). That said, we find such claim to be lacking in merit. "In the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record cast doubt upon the apparent effectiveness of counsel" ( People v. Pace, 192 A.D.3d 1274, 1275, 142 N.Y.S.3d 678 [2021] [internal quotation marks and citations omitted], lv denied 37 N.Y.3d 973, 150 N.Y.S.3d 706, 172 N.E.3d 819 [2021] ; accord People v. Lomax, 161 A.D.3d 1454, 1456, 77 N.Y.S.3d 755 [2018], lv denied 32 N.Y.3d 1113, 91 N.Y.S.3d 364, 115 N.E.3d 636 [2018] ). Here, defense counsel secured an advantageous plea agreement that resolved multiple charges and exposed defendant to the minimum authorized period of incarceration for a second felony offender (see Penal Law § 70.06[3][e] ; [4][b]; People v. Brown, 154 A.D.3d 1004, 1006, 61 N.Y.S.3d 717 [2017], lv denied 30 N.Y.3d 1113, 77 N.Y.S.3d 338, 101 N.E.3d 979 [2018] ). Additionally, during the...