PEOPLE v. MORTON (2019)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered July 29, 2016, which revoked defendant's probation and imposed a sentence of imprisonment.

Defendant waived indictment and agreed to be prosecuted by a superior court information charging him with attempted criminal possession of a controlled substance in the third degree. He pleaded guilty to that crime and waived his right to appeal. In accordance with the terms of the plea agreement, he was sentenced to time served and five years of probation. However, defendant was subsequently charged with violating various conditions of his probation. At the conclusion of a hearing on the probation violations, County Court determined that defendant had violated his probation by possessing a firearm.¹ Consequently, the court revoked his probation and resentenced him to 51/212 years in prison, followed by two years of postrelease supervision. Defendant appeals.

Defendant's challenges related to his underlying judgment of conviction – arguments concerning the voluntariness of his plea and alleged ineffectiveness of counsel prior to and during the plea proceeding – cannot be raised on the appeal from the judgment resentencing him following the revocation of his probation (see People v. Pozzi, 117 A.D.3d 1325, 1325, 986 N.Y.S.2d 669 [2014]; People v. Daniels, 106 A.D.3d 1189, 1189, 964 N.Y.S.2d 753 [2013], lv denied 21 N.Y.3d 1014, 971 N.Y.S.2d 497, 994 N.E.2d 393 [2013]; People v. Pittman, 17 AD3d 930, 931 n, 793 N.Y.S.2d 623 [2005], lv denied 5 N.Y.3d 767, 801 N.Y.S.2d 262, 834 N.E.2d 1272 [2005]).² The record does not support defendant's arguments that he was deprived of meaningful representation at the probation violation hearing. Any other arguments concerning the ineffectiveness of counsel rely on information outside the record and would be more appropriately addressed in a CPL article 440 motion (see People v. Perkins, 140 A.D.3d 1401, 1403, 33 N.Y.S.3d 584 [2016], lv denied 28 N.Y.3d 1126, 51 N.Y.S.3d 22, 73 N.E.3d 362 [2016]).

Defendant's “current challenge to the severity of the sentence imposed upon the revocation of his probation is not precluded by his waiver of appeal entered in connection with his original guilty plea and sentence” (People v. Middlemiss, 149 A.D.3d 1419, 1420, 50 N.Y.S.3d 890 [2017]). Nevertheless, defendant possessed a loaded weapon within months of being placed on probation, resulting in his conviction of another felony. Although the sentence he received was the maximum that could be imposed for the crime of attempted criminal possession of a controlled substance in the third degree (see Penal Law §§ 70.70[2][a][ii]; 110.05[4]; 220.16), we find no extraordinary circumstances or abuse of discretion warranting a reduction of the resentence in the interest of justice (see People v. Regan, 162 A.D.3d 1414, 1415, 79 N.Y.S.3d 752 [2018]).

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   In connection therewith, defendant pleaded guilty to attempted criminal possession of a weapon in the second degree and that conviction is the subject of a separate appeal (People v. Morton, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2019 WL 2528702 [appeal No. 109132, decided herewith]).

2.   There is no indication that defendant appealed from his underlying judgment of conviction.

Mulvey, J.

Garry, P.J., Clark, Devine and Pritzker, JJ., concur.