Opinion
2014-07-30
The PEOPLE, etc., respondent, v. Juan ANDRADES, also known as Juan A. Andrades, also known as Juan A. Andrades, Jr., appellant.
Richard L. Giampa, Esq., P.C., Bronx, N.Y. (Zachary K. Giampa of counsel), for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
Richard L. Giampa, Esq., P.C., Bronx, N.Y. (Zachary K. Giampa of counsel), for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
REINALDO E. RIVERA, J.P., SANDRA L. SGROI, JEFFREY A. COHEN, and BETSY BARROS, JJ.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Greller, J.), rendered June 24, 2011, convicting him of criminal possession of a controlled substance in the third degree, upon his plea of guilty (Hayes, J.), and imposing sentence.
ORDERED that the judgment is affirmed.
“A defendant seeking dismissal of an indictment pursuant to a cooperation agreement [or enforcement of the cooperation agreement] must demonstrate, by a preponderance of the evidence, ‘a clear and specific promise from the authorities [and] services performed by the defendant involving a significant degree of risk or sacrifice’ ” ( People v. Trombley, 72 A.D.3d 1402, 1403, 900 N.Y.S.2d 184, quoting People v. Reed, 184 A.D.2d 536, 537, 584 N.Y.S.2d 162;seeCPL 210.45[7]; Matter of Chaipis v. State Liq. Auth., 44 N.Y.2d 57, 65, 404 N.Y.S.2d 76, 375 N.E.2d 32;People v. Ruggerio, 82 A.D.3d 1270, 1271, 920 N.Y.S.2d 226;People v. Anthony C., 234 A.D.2d 379, 651 N.Y.S.2d 877;People v. Delaney, 80 A.D.2d 835, 436 N.Y.S.2d 336;People v. Argentine, 67 A.D.2d 180, 184–185, 414 N.Y.S.2d 732). Contrary to the defendant's contention, the County Court properly determined in an Argentine hearing ( see People v. Argentine, 67 A.D.2d 180, 414 N.Y.S.2d 732) that the defendant breached a written cooperation agreement with the People by disclosing his involvement in an investigation that was the subject of the cooperation agreement to a third party, thereby compromising the investigation.
The defendant's contention that the County Court applied the wrong evidentiary standard during the Argentine hearing is unpreserved for appellate review, as he failed to object at the appropriate time ( seeCPL 470.05[2]; People v. Young, 295 A.D.2d 631, 632, 745 N.Y.S.2d 177;People v. Correa, 265 A.D.2d 488, 696 N.Y.S.2d 705). In any event, the record indicates that the County Court simply misspoke when it referred to the improper standard, as it later referred to and applied the correct evidentiary standard of preponderance of the evidence in its decision after the hearing ( seeCPL 210.45[7]; People v. Trombley, 72 A.D.3d 1402, 1403, 900 N.Y.S.2d 184;People v. Reed, 184 A.D.2d 536, 536–537, 584 N.Y.S.2d 162).
The defendant's contention that the County Court failed to fulfill a condition of his plea when it sentenced him without a positive laboratory report is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Murphy, 55 A.D.3d 930, 865 N.Y.S.2d 572). In any event, the contention is without merit, as the presentence report stated that a plastic bag recovered from the defendant contained a white powdery substance that testing revealed to be 52.18 grams of cocaine, and the County Court Judge stated at sentencing that he had read the presentence report. Further, the defendant's challenge to the admissibility of the laboratory report does not fall within the limited group of claims relating to fundamental jurisdictional defects which survive a plea of guilty and may be raised on appeal ( see People v. Williams, 288 A.D.2d 409, 733 N.Y.S.2d 222).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
The defendant's remaining contentions are without merit.