Opinion
108333
11-15-2018
The PEOPLE of the State of New York, Respondent, v. Anthony HENRY, Appellant.
Christopher Hammond, Cooperstown, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Sophie J. Marmor of counsel), for respondent.
Christopher Hammond, Cooperstown, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Sophie J. Marmor of counsel), for respondent.
Before: Lynch, J.P., Clark, Mulvey, Rumsey and Pritzker, JJ.
MEMORANDUM AND ORDER
Pritzker, J.
In 2001, defendant was convicted of murder in the second degree and assault in the first degree and was sentenced to a prison term of 25 years to life on the murder conviction and 15 years on the assault conviction ( People v. Henry, 306 A.D.2d 539, 761 N.Y.S.2d 853 [2003], lv denied 100 N.Y.2d 621, 767 N.Y.S.2d 404, 799 N.E.2d 627 [2003] ). The certificate of conviction is silent as to whether the sentences were to run concurrently or consecutively; defendant insists that the sentences were to run concurrently but acknowledges that they are being served consecutively. For reasons not apparent from the face of the record, defendant was resentenced upon the foregoing convictions to the same terms of imprisonment in 2012.
Thereafter, in 2015, defendant was indicted and charged with one count of promoting prison contraband in the first degree. Defendant agreed to plead guilty to attempted promoting prison contraband in the first degree in exchange for a prison term of 1½ to 3 years – said sentence to be served consecutively to the prison term he already was serving. After defendant pleaded guilty and the matter was adjourned for sentencing, defendant raised an issue as to the constitutionality of his prior convictions – arguing that his murder conviction was unconstitutional because he had been convicted under the wrong subdivision of Penal Law § 125.25 and, further, that the sentence imposed upon his assault conviction was illegal because it arose out of the same criminal transaction as the murder conviction; therefore, defendant's argument continued, the sentences imposed thereon should have run concurrently with one another. Following numerous adjournments to permit defense counsel to develop this issue, County Court denied defendant's challenge to his predicate felon status without a hearing and thereafter sentenced him as a second felony offender to the agreed-upon term of imprisonment. Defendant now appeals.
We affirm. Defendant's challenge to the voluntariness of his plea is unpreserved for our review in the absence of an appropriate postallocution motion (see People v. Lamb, 162 A.D.3d 1395, 1396, 80 N.Y.S.3d 520 [2018] ; People v. Gomez, 162 A.D.3d 1311, 1311–1312, 79 N.Y.S.3d 740 [2018] ; People v. Gray, 162 A.D.3d 1248, 1248, 75 N.Y.S.3d 385 [2018] ), and we discern no basis upon which to invoke the narrow exception to the preservation requirement (see People v. Sisto, 161 A.D.3d 1483, 1483, 74 N.Y.S.3d 773 [2018], lv denied 32 N.Y.3d 941, 84 N.Y.S.3d 868, 109 N.E.3d 1168 [2018] ; People v. Duggins, 161 A.D.3d 1445, 1446, 77 N.Y.S.3d 765 [2018], lv denied 32 N.Y.3d 937, 84 N.Y.S.3d 863, 109 N.E.3d 1163 [2018] ). Defendant, who was well aware that he would be sentenced as a second felony offender, raised no issue as to his predicate felon status at the time of his plea – inquiring only as to the manner in which his new term of imprisonment would run relative to the period of incarceration he already was serving – and did not otherwise make any statements that called into question the voluntariness of his plea (see People v. Muller, 159 A.D.3d 1232, 1233, 73 N.Y.S.3d 279 [2018] ). As for County Court's asserted failure to rule on defendant's motion challenging the sufficiency of the grand jury minutes, defendant forfeited this claim, "as the right to challenge the sufficiency of the grand jury evidence ceases upon entry of a guilty plea" ( People v. Carston, 163 A.D.3d 1166, 1167, 80 N.Y.S.3d 724 [2018], lv denied 32 N.Y.3d 1002, 111 N.E.3d 1116, 86 N.Y.S.3d 760, 2018 WL 4941007 [Sept. 20, 2018] ; see People v. Wilburn, 158 A.D.3d 894, 894–895, 71 N.Y.S.3d 181 [2018], lv denied 31 N.Y.3d 1123, 81 N.Y.S.3d 383, 106 N.E.3d 766 [2018] ). Finally, "[a]lthough defendant argued at sentencing that his prior convictions were unconstitutional, he failed to meet his burden to allege and prove the facts underlying his claims and, thus, to demonstrate his entitlement to a hearing" ( People v. Rice, 162 A.D.3d 1244, 1247, 78 N.Y.S.3d 776 [2018] [internal quotation marks, brackets and citation omitted], lv denied 32 N.Y.3d 940, 84 N.Y.S.3d 867, 109 N.E.3d 1167 [2018] ; see People v. Gumbs, 107 A.D.3d 548, 548–549, 968 N.Y.S.2d 452 [2013], lv denied 22 N.Y.3d 1156, 984 N.Y.S.2d 640, 7 N.E.3d 1128 [2014], cert denied ––– U.S. ––––, 135 S. Ct. 143, 190 L.Ed.2d 107 [2014] ) – particularly given that the challenged convictions had been affirmed years earlier (see People v. Rice, 162 A.D.3d at 1247, 78 N.Y.S.3d 776 ) and defendant had been afforded ample opportunity to develop this issue prior to sentencing. Defendant's remaining arguments, to the extent not expressly addressed, have been examined and found to be lacking in merit.
Lynch, J.P., Clark, Mulvey and Rumsey, JJ., concur.
ORDERED that the judgment is affirmed.