PEOPLE v. SHARPTON EARL (2024)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Clinton County (Keith M. Bruno, J.), rendered September 25, 2017, convicting defendant upon his plea of guilty of the crimes of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree (seven counts) and conspiracy in the fourth degree (two counts).

Defendant was charged in an indictment with the crimes of criminal sale of a controlled substance in the third degree, seven counts of criminal possession of a controlled substance in the third degree and two counts of conspiracy in the fourth degree.  Defendant pleaded guilty as charged and sentencing was left to County Court's discretion.  County Court sentenced defendant, in connection with his convictions of criminal sale of a controlled substance and criminal possession of a controlled substance, to eight concurrent prison terms of eight years, to be followed by two years of postrelease supervision, and to lesser concurrent prison terms for his convictions of conspiracy.  Defendant appeals.

We affirm.  Defendant's challenges to the voluntariness of his plea are unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion to withdraw his plea despite having an opportunity to do so prior to sentencing (see People v. Wilcox, 218 A.D.3d 965, 965, 194 N.Y.S.3d 170 [3d Dept. 2023];  People v. Devane, 212 A.D.3d 894, 895, 180 N.Y.S.3d 732 [3d Dept. 2023], lv denied 39 N.Y.3d 1110, 186 N.Y.S.3d 840, 208 N.E.3d 68 [2023]).  Further, the narrow exception to the preservation rule was not triggered (see People v. Loya, 215 A.D.3d 1181, 1183, 187 N.Y.S.3d 444 [3d Dept. 2023], lv denied 40 N.Y.3d 929, 192 N.Y.S.3d 502, 213 N.E.3d 644 [2023];  People v. Hawkins, 207 A.D.3d 814, 815, 170 N.Y.S.3d 732 [3d Dept. 2022]) and we decline defendant's request that we take corrective action in the interest of justice (see People v. Miller, 215 A.D.3d 1141, 1142, 186 N.Y.S.3d 445 [3d Dept. 2023], lv denied 40 N.Y.3d 930, 192 N.Y.S.3d 497, 213 N.E.3d 639 [2023]).  Defendant's ineffective assistance of counsel claim, inasmuch as it impacts the voluntariness of his plea, is similarly unpreserved for our review by the lack of an appropriate postallocution motion (see People v. Coler, 214 A.D.3d 1207, 1208, 185 N.Y.S.3d 834 [3d Dept. 2023], lv denied 40 N.Y.3d 1091, 204 N.Y.S.3d 798, 228 N.E.3d 612 [2024];  People v. West, 210 A.D.3d 1194, 1195, 178 N.Y.S.3d 266 [3d Dept. 2022], lv denied 39 N.Y.3d 1080, 184 N.Y.S.3d 290, 204 N.E.3d 1072 [2023]).  To the extent that the claimed inadequacies involve matters outside of the record, such claims are more properly the subject of a CPL article 440 motion (see People v. Hilliard, 214 A.D.3d 1259, 1261, 184 N.Y.S.3d 638 [3d Dept. 2023], lv denied 40 N.Y.3d 929, 192 N.Y.S.3d 501, 213 N.E.3d 643 [2023];  People v. Buchanan, 202 A.D.3d 1166, 1167, 160 N.Y.S.3d 494 [3d Dept. 2022], lv denied 38 N.Y.3d 1007, 168 N.Y.S.3d 366, 188 N.E.3d 558 [2022]).

Regarding defendant's challenge to the severity of his sentences, his sentencing exposure was significantly greater than the terms imposed and, upon our review of the record and considering all the relevant circumstances, we do not find the sentences to be unduly harsh or severe (see CPL 470.15[6][b]).  Finally, the record reflects that County Court imposed $2,000 fines on the conviction of criminal sale of a controlled substance in the third degree (count 1) and each of the seven convictions of criminal possession of a controlled substance in the third degree (counts 2, 4, 5, 6, 8, 9, 10), totaling $16,000.  The People concede, and we agree, however, that the convictions for counts 1 and 2 and the convictions for counts 9 and 10 arose out of single acts.  As such, County Court erroneously imposed $2,000 fines on the convictions for counts 2 and 10 (see Penal Law §§ 80.00[1][c][iii], [iv];  80.15;  People v. Roundtree, 220 A.D.3d 1049, 1055, 198 N.Y.S.3d 788 [3d Dept. 2023]) and those fines must be vacated.

ORDERED that the judgment is modified, on the law, by reducing the total fine imposed to $12,000, and, as so modified, affirmed.

Lynch, J.

Egan Jr., J.P., Clark, McShan and Powers, JJ., concur.