Opinion
12-23-2016
The PEOPLE of the State of New York, Respondent, v. Brett E. COPES, Defendant–Appellant.
Charles A. Marangola, Moravia, for Defendant–Appellant. Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of Counsel), for Respondent.
Charles A. Marangola, Moravia, for Defendant–Appellant.
Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of Counsel), for Respondent.
PRESENT: WHALEN, P.J., SMITH, CARNI, DeJOSEPH, AND CURRAN, JJ.
MEMORANDUM:Defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal possession of a controlled substance in the third degree (Penal Law §§ 110.00, 220.16[1] ) and criminally using drug paraphernalia in the second degree (§ 220.50[3] ). Defendant does not challenge the validity of his waiver of the right to appeal, and his valid waiver encompasses his contention that the sentence is unduly harsh and severe (see People v. Ruffin, 101 A.D.3d 1793, 1793, 955 N.Y.S.2d 917, lv. denied 21 N.Y.3d 1019, 971 N.Y.S.2d 501, 994 N.E.2d 397 ; People v. Foster, 281 A.D.2d 902, 902, 722 N.Y.S.2d 201, lv. denied 96 N.Y.2d 862, 730 N.Y.S.2d 36, 754 N.E.2d 1119 ; see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Defendant further contends that the court violated the terms of the plea agreement by failing to impose a sentence of parole supervision pursuant to CPL 410.91. Although that contention implicates the voluntariness of defendant's guilty plea and therefore survives his waiver of the right to appeal (see People v. Brady, 122 A.D.3d 1009, 1010, 995 N.Y.S.2d 418, lv. denied 25 N.Y.3d 1160, 15 N.Y.S.3d 292, 36 N.E.3d 95 ), we conclude that it is without merit. The record establishes that the court did not promise defendant a sentence of parole supervision, but merely stated that it was willing to impose such a sentence if defendant was eligible for it (see People v. Hernandez, 62 A.D.3d 1095, 1097, 878 N.Y.S.2d 819, lv. denied 13 N.Y.3d 745, 886 N.Y.S.2d 99, 914 N.E.2d 1017 ; People v. Carlton, 2 A.D.3d 1353, 1354, 770 N.Y.S.2d 502,
lv. denied 1 N.Y.3d 625, 777 N.Y.S.2d 24, 808 N.E.2d 1283 ; see also People v. Hardy, 32 A.D.3d 1317, 1318, 821 N.Y.S.2d 533, lv. denied 7 N.Y.3d 925, 827 N.Y.S.2d 694, 860 N.E.2d 996 ). Inasmuch as defendant's prior violent felony conviction rendered him ineligible for a sentence of parole supervision (see CPL 410.91[2] ), "there was no ... unfulfilled sentencing promise" (Carlton, 2 A.D.3d at 1354, 770 N.Y.S.2d 502 ; see People v. Tallman, 92 A.D.3d 1082, 1083, 938 N.Y.S.2d 375, lv. denied 20 N.Y.3d 1065, 962 N.Y.S.2d 616, 985 N.E.2d 926 ). To the extent that defendant contends that the attorneys and the court assured him that he would be eligible for a parole supervision sentence, that contention is belied by his acknowledgment during the plea colloquy that no off-the-record promises had been made to induce him to plead guilty (see People v. Sanchez, 184 A.D.2d 537, 538, 584 N.Y.S.2d 164, lv. denied 80 N.Y.2d 909, 588 N.Y.S.2d 835, 602 N.E.2d 243 ; see also Brady, 122 A.D.3d at 1010–1011, 995 N.Y.S.2d 418 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.