PEOPLE v. GONZALEZ (2025)

Judgments, Supreme Court, New York County (Diane Kiesel, J.), rendered August 9, 2022, convicting defendant, upon his pleas of guilty, of grand larceny in the fourth degree, grand larceny in the third degree, and bail jumping in the second degree, and sentencing him, as a second felony offender, to an aggregate term of 4 to 8 years, unanimously affirmed.

Defendant's claim that his guilty pleas were rendered involuntary by the court's allegedly inaccurate description of his minimum potential sentence is unpreserved because he did not move to withdraw his pleas or challenge his convictions (see People v. Williams, 27 N.Y.3d 212, 214, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016];  People v. Concepcion, 210 A.D.3d 443, 175 N.Y.S.3d 895 [1st Dept. 2022], lv denied 39 N.Y.3d 1071, 183 N.Y.S.3d 782, 204 N.E.3d 418 [2023]), and we decline to review it in the interest of justice.  The narrow exception to the preservation requirement does not apply because defendant had the practical ability to seek relief from the sentencing court (see People v. Conceicao, 26 N.Y.3d 375, 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015];  People v. Louree, 8 N.Y.3d 541, 546, 838 N.Y.S.2d 18, 869 N.E.2d 18 [2007]), and the record indicates that defendant was aware that he could receive concurrent sentences under Penal Law § 70.25(2–c), upon a showing of “mitigating circumstances that bear directly upon the manner in which the crime was committed.”  Moreover, even assuming that defendant was unaware that his sentences could run concurrently, “certainly defense counsel was aware,” and defendant did not move to withdraw his plea during the two months between his plea and sentencing proceedings (People v. Melendez, 201 A.D.3d 444, 445, 159 N.Y.S.3d 55 [1st Dept. 2022], lv denied 38 N.Y.3d 929, 164 N.Y.S.3d 36, 184 N.E.3d 857 [2022]).

We further find that, to the extent the court should have clarified its remarks regarding consecutive sentencing and the potential minimum sentence, this “is not, in and of itself, dispositive” as to the voluntariness of his plea (People v. Garcia, 92 N.Y.2d 869, 870, 677 N.Y.S.2d 772, 700 N.E.2d 311 [1998];  People v. Murray, 175 A.D.3d 1191, 109 N.Y.S.3d 271 [1st Dept. 2019], lv denied 34 N.Y.3d 1018, 114 N.Y.S.3d 768, 138 N.E.3d 497 [2019]).  Here, defendant was repeatedly and correctly warned that he faced sentencing after trial as a discretionary persistent felony offender (see Penal Law §§ 70.00, 70.10), and the record does not establish that any alleged misinformation had an effect on his decision to plead guilty, in light of the strength of the People's case, the assistance of competent counsel, defendant's knowledge and experience, and the reasonableness of the promised sentence (see People v. Murray, 175 A.D.3d at 1191, 109 N.Y.S.3d 271;  see also People v. Joseph, 191 A.D.3d 148, 150, 137 N.Y.S.3d 31 [1st Dept. 2020], lv denied 36 N.Y.3d 1121, 146 N.Y.S.3d 199, 169 N.E.3d 557 [2021]).

Defendant's related ineffective assistance of counsel claim is unreviewable on direct appeal because it involves matters not reflected in, or fully explained by, the record (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988];  People v. Lowman, 24 A.D.3d 198, 806 N.Y.S.2d 193 [1st Dept. 2005], lv denied 6 N.Y.3d 815, 812 N.Y.S.2d 455, 845 N.E.2d 1286 [2006]).  Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claim may not be addressed on appeal.  To the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  see also Strickland v. Washington, 466 U.S. 668, 689–692, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984]).

“Defendant did not preserve his claim that the court misapprehended whether it had discretion to impose concurrent sentences” (People v. Diaby, 172 A.D.3d 473, 97 N.Y.S.3d 861 [1st Dept. 2019], lv denied 33 N.Y.3d 1068, 105 N.Y.S.3d 45, 129 N.E.3d 365 [2019]), and we decline to review it in the interest of justice.  Defendant's failure to timely object to the court's alleged misunderstanding of its sentencing discretion denied the court an opportunity to address the perceived issue (see People v. Giacchi, 154 A.D.3d 544, 545, 61 N.Y.S.3d 895 [1st Dept. 2017], lv denied 30 N.Y.3d 1105, 77 N.Y.S.3d 4, 101 N.E.3d 390 [2018]), and defendant did not proffer any “relevant information to assist the court” in determining whether his sentences should run consecutively or concurrently (Penal Law § 70.25[2–c]).

We perceive no basis for reducing the sentence.