PEOPLE v. BONNER (2005)

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered May 27, 2003, convicting defendant upon his plea of guilty of the crime of robbery in the second degree.

Defendant was charged in a one-count indictment with the crime of robbery in the second degree.   Pursuant to a plea bargain wherein it was agreed that County Court would consider the presentence investigation report and any information presented by counsel prior to imposing sentence and that neither the court nor the People would seek to have defendant classified as a persistent felony offender or a persistent violent felony offender, defendant pleaded guilty to the crime of robbery in the second degree and waived his right to appeal.   County Court subsequently sentenced defendant as a second felony offender to a term of imprisonment of 14 years, with a period of five years of postrelease supervision, and imposed a mandatory surcharge of $210.   Defendant now appeals.

 Defendant contends that pursuant to this Court's decision in People v. Goss, 286 A.D.2d 180, 733 N.Y.S.2d 310 [2001], his sentence must be vacated because he was not advised prior to pleading guilty that the sentence imposed would include a period of postrelease supervision and a surcharge.   However, the rule set forth in Goss applies to situations in which the defendant was “deprived of the benefit of his [or her] bargain when the period of postrelease supervision was automatically added to the determinate term” agreed to (People v. Jachimowicz, 292 A.D.2d 688, 689, 738 N.Y.S.2d 770 [2002];  see People v. Van Deusen, 19 A.D.3d 747, 748, 796 N.Y.S.2d 721 [2005] ).   Here, defendant was not promised a specific sentence;  he was only assured that County Court would give fair consideration to all of the information before it in imposing sentence and that he would not be sentenced as a persistent felony offender or persistent violent felony offender.   Thus, the imposition of a period of postrelease supervision could not have had any impact on his decision to plead guilty (see People v. Munck, 4 A.D.3d 627, 628, 771 N.Y.S.2d 733 [2004], lv. denied 2 N.Y.3d 803, 781 N.Y.S.2d 302, 814 N.E.2d 474 [2004] ).   Moreover, imposition of a mandatory surcharge does not warrant setting aside defendant's sentence (see People v. Neu, 1 A.D.3d 798, 798, 767 N.Y.S.2d 313 [2003];  see also People v. Prihett, 279 A.D.2d 335, 335, 718 N.Y.S.2d 840 [2001] ).

 In light of defendant's knowing, voluntary and intelligent plea and waiver of his right to appeal, we will not consider his argument that the indictment should be dismissed because he was not given an opportunity to testify before the grand jury (see People v. Prodromidis, 276 A.D.2d 912, 912, 716 N.Y.S.2d 612 [2000];  People v. Chappelle, 250 A.D.2d 878, 878-879, 673 N.Y.S.2d 751 [1998], lv. denied 92 N.Y.2d 894, 680 N.Y.S.2d 58, 702 N.E.2d 843 [1998] ) or his challenge to the effectiveness of his counsel, as it does not implicate the voluntariness of his guilty plea (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989];  People v. Labarge, 13 A.D.3d 989, 989, 786 N.Y.S.2d 673 [2004];  People v. Almonte, 288 A.D.2d 632, 633, 732 N.Y.S.2d 705 [2001], lv. denied 97 N.Y.2d 726, 740 N.Y.S.2d 699, 767 N.E.2d 156 [2002];  People v. Shaw, 261 A.D.2d 648, 649, 690 N.Y.S.2d 151 [1999] ).

ORDERED that the judgment is affirmed.

CREW III, J.P.

PETERS, MUGGLIN, ROSE and LAHTINEN, JJ., concur.