PEOPLE v. VOLFSON (2010)

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered October 7, 2008, convicting defendant upon his plea of guilty of the crimes of criminal possession of marihuana in the first degree and forgery in the second degree.

In January 2008, the State Police stopped a rental truck in the Town of Mamakating, Sullivan County and conducted a canine sniff search that identified a large quantity of marihuana concealed inside the truck.   The driver indicated that defendant, who was traveling in another vehicle, was responsible for the shipment.   When defendant was stopped shortly thereafter, marihuana was found on his person and the truck's rental agreement was found in his vehicle.   Defendant was arrested and subsequently charged with, among other things, criminal possession of marihuana in the first degree and forgery in the second degree.   He pleaded guilty to these two charges under an agreement that included a waiver of the right to appeal and provided that he would be sentenced as a second felony offender to an aggregate prison term of 7 1/2 years, with three years of postrelease supervision and, further, that New York would allow the sentence to run concurrently with any sentence imposed on charges then pending in Utah and New Mexico.   Defendant now appeals.

 Defendant's argument that his guilty plea was not knowingly, voluntarily, and intelligently made is not foreclosed by his waiver of the right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 10-11, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989];  People v. Romano, 45 A.D.3d 910, 912, 845 N.Y.S.2d 151 [2007], lv. denied 10 N.Y.3d 770, 854 N.Y.S.2d 332, 883 N.E.2d 1267 [2008] ).   Nonetheless the issue is not preserved for our review due to defendant's failure to move to withdraw the plea or vacate the judgment of conviction (see People v. Mondore, 18 A.D.3d 961, 961, 794 N.Y.S.2d 718 [2005] ).   The exception to the preservation rule does not apply as defendant made no statements during the plea colloquy that were inconsistent with guilt (see People v. Alexander, 31 A.D.3d 885, 886, 817 N.Y.S.2d 786 [2006];  People v. Mondore, 18 A.D.3d at 961, 794 N.Y.S.2d 718).   In any event, defendant's claim that he did not understand the import of his waiver of the rights to trial and appeal is belied by the record of County Court's extensive colloquies with him (see People v. Swarts, 64 A.D.3d 801, 802, 882 N.Y.S.2d 736 [2009] ).

 Defendant further claims that his trial counsel was ineffective in failing to fully explain the consequences of the plea and in improperly discouraging him from exercising his right to trial.   To the extent this claim relates to the voluntariness of his plea, it survives his waiver of the right to appeal (see People v. Marshall, 66 A.D.3d 1115, 1116, 887 N.Y.S.2d 308 [2009];  People v. Walley, 63 A.D.3d 1284, 1285, 881 N.Y.S.2d 203 [2009] ), but is unpreserved due to his failure to move to withdraw the plea or vacate the judgment of conviction (see People v. Maldonado, 61 A.D.3d 1220, 1220, 876 N.Y.S.2d 661 [2009];  People v. Sterling, 57 A.D.3d 1110, 1112-1113, 869 N.Y.S.2d 288 [2008], lv. denied 12 N.Y.3d 788, 879 N.Y.S.2d 65, 906 N.E.2d 1099 [2009] ).   In any event, as to those matters revealed in the record, there is no indication that defendant was not afforded meaningful representation (see People v. Rivera, 71 N.Y.2d 705, 708-709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988];  People v. Baldi, 54 N.Y.2d 137, 146-147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).   To the extent that defendant's assertions are based on matters outside the record, they should be addressed by a motion pursuant to CPL 440.10 (see People v. Echavarria, 53 A.D.3d 859, 863-864, 861 N.Y.S.2d 510 [2008], lv. denied 11 N.Y.3d 832, 868 N.Y.S.2d 606, 897 N.E.2d 1090 [2008] ).

 Our review of defendant's claim that his prison sentence is harsh and excessive is precluded by his waiver of the right to appeal (see People v. Lopez, 6 N.Y.3d 248, 255-256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Spangenberg, 49 A.D.3d 969, 969, 852 N.Y.S.2d 810 [2008], lv. denied 10 N.Y.3d 870, 860 N.Y.S.2d 497, 890 N.E.2d 260 [2008] ).   However, the record of the sentencing proceedings reveals that although County Court clearly intended to sentence defendant in accordance with the plea agreement, it inadvertently failed to pronounce sentence separately on each of the two counts to which he pleaded guilty, as required by CPL 380.20.   The matter must, therefore, be remitted for sentencing on both counts (see People v. Sturgis, 69 N.Y.2d 816, 817-818, 513 N.Y.S.2d 961, 506 N.E.2d 532 [1987];  People v. Murphy, 37 A.D.3d 976, 976-977, 829 N.Y.S.2d 757 [2007] ).

ORDERED that the judgment is modified, on the law, by vacating the sentence imposed;  matter remitted to the County Court of Sullivan County for resentencing;  and, as so modified, affirmed.

GARRY, J.

MERCURE, J.P., PETERS, LAHTINEN and KAVANAGH, JJ., concur.