PEOPLE v. CLARK (2009)

 Defendant appeals from a judgment convicting her, upon a plea of guilty, of attempted criminal sale of a controlled substance in the third degree (Penal Law §§ 110.00, 220.39[1] ).   We reject the contention of defendant in her main brief that County Court abused its discretion in denying her motion to withdraw her guilty plea, as well as the contention in her pro se supplemental brief that the plea was involuntarily entered.   There is no “ ‘evidence of innocence, fraud, or mistake in inducing the plea’ ” (People v. Pillich, 48 A.D.3d 1061, 849 N.Y.S.2d 817, lv. denied 11 N.Y.3d 793, 866 N.Y.S.2d 619, 896 N.E.2d 105;  see CPL 220.60[3] ), nor is there any indication in the record before us that the plea was not voluntarily entered (see People v. Seeber, 4 N.Y.3d 780, 781-782, 793 N.Y.S.2d 826, 826 N.E.2d 797;  People v. Phillips, 56 A.D.3d 1163, 867 N.Y.S.2d 324).   Defendant failed to preserve for our review her contention in her main brief that the sentence constitutes cruel and unusual punishment (see People v. Santilli, 16 A.D.3d 1056, 1057, 790 N.Y.S.2d 898), as well as the contention in her pro se supplemental brief that the court erred in imposing an enhanced sentence when she failed to appear at sentencing (see People v. Brooks, 59 A.D.3d 999, 872 N.Y.S.2d 354).   Those contentions are without merit in any event.   The sentence does not constitute cruel and unusual punishment (see People v. Holmquist, 5 A.D.3d 1041, 773 N.Y.S.2d 682, lv. denied 2 N.Y.3d 800, 781 N.Y.S.2d 300, 814 N.E.2d 472;  see generally People v. Thompson, 83 N.Y.2d 477, 482-483, 611 N.Y.S.2d 470, 633 N.E.2d 1074), and the court warned defendant that, if she failed to appear at sentencing, the court would no longer be bound by the agreed-upon sentence and would instead impose the maximum sentence allowed (see People v. Winship, 26 A.D.3d 768, 809 N.Y.S.2d 722, lv. denied 6 N.Y.3d 899, 817 N.Y.S.2d 634, 850 N.E.2d 681;  see generally People v. Bush, 30 A.D.3d 1078, 815 N.Y.S.2d 864, lv. denied 7 N.Y.3d 785, 821 N.Y.S.2d 815, 854 N.E.2d 1279).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: