People v. Fennell

Appellate Division of the Supreme Court of New York

People v. Fennell

284 A.D.2d 795, 726 N.Y.S.2d 507, 2001 N.Y. App. Div. LEXIS 6863

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 28, 2001

StatusPublished

Cited by3 cases

This text of 284 A.D.2d 795 (People v. Fennell) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Fennell, 284 A.D.2d 795, 726 N.Y.S.2d 507, 2001 N.Y. App. Div. LEXIS 6863 (N.Y. Ct. App. 2001).

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Opinion

Carpinello, J.

Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered October 19, 1998, convicting defendant upon his plea of guilty of the crimes of criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree.

After pleading guilty to criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree, defendant was sentenced to two consecutive prison terms of 2 to 6 years. Defendant appeals contending that his guilty plea was not knowing, voluntary and intelligent because he thought he was receiving a prison sentence of 4 to 12 years.

Initially, although defendant’s waiver of his right to appeal at the time of his plea does not preclude him from subsequently arguing the voluntariness of his plea (see, People v Seaberg, 74 NY2d 1, 10), inasmuch as defendant failed to withdraw his plea when given the opportunity by County Court at sentencing, this issue is not preserved for our review (see, People v McFadgen, 274 AD2d 830, 831, lv denied 95 NY2d 966). Were we to consider the merits, we would find that defendant entered a knowing, voluntary and intelligent plea. At a hearing prior to sentencing, defendant expressed concern that consecutive sentences would affect his eligibility for temporary release. County Court adjourned the proceeding and appointed new counsel for defendant so that the ramifications of receiving consecutive sentences could be explored. After consulting with his new attorney, defendant indicated that he did not wish to withdraw his plea. Based on these circumstances, defendant cannot be heard now to complain that his plea was not knowing, voluntary and intelligent.

Mercure, J. P., Crew III, Peters and Rose, JJ., concur. Ordered that the judgment is affirmed.

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Carpinello, J.

Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered October 19, 1998, convicting defendant upon his plea of guilty of the crimes of criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree.

After pleading guilty to criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree, defendant was sentenced to two consecutive prison terms of 2 to 6 years. Defendant appeals contending that his guilty plea was not knowing, voluntary and intelligent because he thought he was receiving a prison sentence of 4 to 12 years.

Initially, although defendant’s waiver of his right to appeal at the time of his plea does not preclude him from subsequently arguing the voluntariness of his plea (see, People v Seaberg, 74 NY2d 1, 10), inasmuch as defendant failed to withdraw his plea when given the opportunity by County Court at sentencing, this issue is not preserved for our review (see, People v McFadgen, 274 AD2d 830, 831, lv denied 95 NY2d 966). Were we to consider the merits, we would find that defendant entered a knowing, voluntary and intelligent plea. At a hearing prior to sentencing, defendant expressed concern that consecutive sentences would affect his eligibility for temporary release. County Court adjourned the proceeding and appointed new counsel for defendant so that the ramifications of receiving consecutive sentences could be explored. After consulting with his new attorney, defendant indicated that he did not wish to withdraw his plea. Based on these circumstances, defendant cannot be heard now to complain that his plea was not knowing, voluntary and intelligent.

Mercure, J. P., Crew III, Peters and Rose, JJ., concur. Ordered that the judgment is affirmed.

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Bluebook (online)

284 A.D.2d 795, 726 N.Y.S.2d 507, 2001 N.Y. App. Div. LEXIS 6863, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-fennell-nyappdiv-2001.

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