People v. Leger

135 A.D.2d 835, 522 N.Y.S.2d 938, 1987 N.Y. App. Div. LEXIS 52768

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 28, 1987
• Status: Published

Opinion

— Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mclnerney, J.), rendered November 7, 1984, convicting him of criminal sale of a controlled substance in the second degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

We have reviewed the record and agree with the defendant’s assigned counsel that there are no meritorious issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is granted (see, Anders v California, 386 US 738; People v Paige, 54 AD2d 631; cf., People v Gonzalez, 47 NY2d 606).

The claim raised in the defendant’s supplemental pro se brief, that the People reneged on a promise which was a condition of the guilty plea, was not preserved for appellate review by a motion to withdraw the plea before sentencing (see, People v Hoke, 62 NY2d 1022; People v Pellegrino, 60 NY2d 636). Moreover, the correspondence appended to assigned counsel’s brief indicates that the defendant has now abandoned this claim. In any event, the defendant’s claim is belied by the record. The prosecutor promised to make good-faith efforts to arrange for the defendant to serve his sentence in a Federal correctional facility. The record indicates that the prosecutor engaged in lengthy negotiations with the appropriate authorities to orchestrate this arrangement. However, due to factors beyond the prosecutor’s control, his efforts were unsuccessful. Actual acceptance into a Federal institution was not a condition of the guilty plea. Accordingly, there is no basis for disturbing the conviction (see, People v Cataldo, 39 NY2d 578, 580). Mollen, P. J., Bracken, Rubin and Spatt, JJ., concur.