PEOPLE v. WILSON (2005)

Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered December 17, 2003, convicting defendant upon his plea of guilty of the crime of promoting prison contraband in the first degree.

Defendant, an inmate, pleaded guilty to the crime of promoting prison contraband in the first degree in satisfaction of a two-count indictment arising from his unlawful possession of marihuana while he was incarcerated.   Pursuant to a negotiated plea agreement, sentencing was adjourned to allow him to participate in an in-patient substance abuse program, the completion of which would permit him to withdraw the guilty plea and result in the dismissal of the indictment.   The People recommended that defendant be sentenced to 2 to 4 years in prison in the event of his failure to complete the program.   County Court determined that such failure could result in a prison term of between 3 1/212 to 7 years.   Following defendant's discharge from the program due to his failure to abide by its requirements, he was sentenced, as a second felony offender, to a prison term of 2 to 4 years.   He appeals and we affirm.

 Defendant's challenge to the voluntariness of his plea is not preserved for our review given his failure to move to withdraw the plea or vacate the judgment of conviction (see People v. Lee, 272 A.D.2d 785, 785, 709 N.Y.S.2d 454 [2000], lv. denied 95 N.Y.2d 867, 715 N.Y.S.2d 222, 738 N.E.2d 370 [2000];  People v. Ramirez, 272 A.D.2d 779, 779, 709 N.Y.S.2d 453 [2000], lv. denied 95 N.Y.2d 907, 716 N.Y.S.2d 648, 739 N.E.2d 1153 [2000];  People v. Santos, 247 A.D.2d 651, 651, 668 N.Y.S.2d 951 [1998], lv. denied 92 N.Y.2d 905, 680 N.Y.S.2d 69, 702 N.E.2d 854 [1998] ).   Although defendant initially noted that he felt pressure to plead guilty, the plea colloquy as a whole does not “cast[ ] significant doubt upon [his] guilt or otherwise call[ ] into question the voluntariness of the plea” so as to invoke the narrow exception to the preservation requirement (People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ).   Following defendant's statement, County Court made a further inquiry to ensure that defendant's plea was knowingly and voluntarily entered, and defendant's failure to dispute the court's remedial action constituted a waiver of any challenge to his allocution (see id. at 668, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Rich, 10 A.D.3d 739, 740, 781 N.Y.S.2d 536 [2004];  People v. Kemp, 288 A.D.2d 635, 636, 732 N.Y.S.2d 694 [2001];  People v. Moore, 270 A.D.2d 715, 716, 705 N.Y.S.2d 425 [2000], lv. denied 95 N.Y.2d 800, 711 N.Y.S.2d 168, 733 N.E.2d 240 [2000] ).   In any event, were we to consider defendant's claim, we would find it to be without merit.

 We are also unpersuaded by defendant's contention that his sentence is harsh and excessive.   Although defendant, as a second felony offender, could have received a lengthier sentence due to his failure to complete the treatment program (see Penal Law § 70.06[3][d];  [4][b] ), County Court imposed a lesser sentence in accordance with the People's recommendation.   Given defendant's criminal history and his failure to adequately address his substance abuse problem as required by the negotiated plea agreement, we discern no abuse of discretion or extraordinary circumstances to warrant a reduction in the sentence (see People v. Santiago, 6 A.D.3d 979, 979, 775 N.Y.S.2d 606 [2004];  People v. Biggs, 268 A.D.2d 800, 800, 701 N.Y.S.2d 713 [2000];  People v. Bell, 255 A.D.2d 836, 836, 680 N.Y.S.2d 879 [1998], lv. denied 93 N.Y.2d 966, 695 N.Y.S.2d 52, 716 N.E.2d 1097 [1999] ).

ORDERED that the judgment is affirmed.

PETERS, J.

CARDONA, P.J., CARPINELLO, MUGGLIN and LAHTINEN, JJ., concur.