Opinion
01-02-2015
The PEOPLE of the State of New York, Respondent, v. Arcides DIEGUEZ–CASTILLO, also known as Arcides Castillo Dieguez, Defendant–Appellant.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant. Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant.
Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.
MEMORANDUM: On appeal from a judgment convicting him, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree ( Penal Law §§ 110.00, 220.39[1] ), defendant contends that his waiver of the right to appeal is unenforceable, and that his sentence is unduly harsh and severe. Even assuming, arguendo, that defendant did not voluntarily waive his right to appeal, we perceive no basis to modify the sentence, which was consistent with County Court's sentence promise. We note that defendant has four felony drug convictions and is an admitted gang member who refused to cooperate with the authorities upon arrest. We also note that defendant was sentenced to far less than the maximum sentence permitted by law, notwithstanding the strength of the People's evidence against him. We reject defendant's further contention that the court erred in ordering him to pay $280 in restitution without conducting a hearing inasmuch as defendant "expressly waived his right to a hearing and agreed to the amount of restitution at sentencing" ( People v. Farewell, 90 A.D.3d 1502, 1503, 934 N.Y.S.2d 884, lv. denied 18 N.Y.3d 957, 944 N.Y.S.2d 486, 967 N.E.2d 711 ).
Finally, defendant contends that his plea was involuntarily entered because the court did not clearly explain to him during the plea colloquy that he could be sentenced consecutively on drug charges that were then pending in Monroe County. Although defendant's contention that his plea was involuntary would survive even a valid waiver of the right to appeal (see People v. Jackson, 85 A.D.3d 1697, 1698, 925 N.Y.S.2d 746, lv. denied 17 N.Y.3d 817, 929 N.Y.S.2d 806, 954 N.E.2d 97 ; People v. Dunham, 83 A.D.3d 1423, 1424, 919 N.Y.S.2d 258, lv. denied 17 N.Y.3d 794, 929 N.Y.S.2d 102, 952 N.E.2d 1097 ), he failed to preserve that contention for our review by failing to move to withdraw the plea or to vacate the judgment of conviction (see People v. Cubi, 104 A.D.3d 1225, 1226, 960 N.Y.S.2d 585, lv. denied 21 N.Y.3d 1003, 971 N.Y.S.2d 254, 993 N.E.2d 1277 ; People v. Sherman, 8 A.D.3d 1026, 1026, 778 N.Y.S.2d 376, lv. denied 3 N.Y.3d 681, 784 N.Y.S.2d 19, 817 N.E.2d 837 ). Moreover, the "narrow" exception to the preservation requirement recognized in People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 does not apply because "defendant's recitation of the facts underlying the crime pleaded to [did not] clearly cast[ ] significant doubt upon the defendant's guilt or otherwise call[ ] into question the voluntariness of the plea." We note in any event that defendant does not assert that he was in fact sentenced consecutively on the Monroe County charges.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.