PEOPLE v. LAMOTTE (2020)

MEMORANDUM AND ORDER

Defendant waived indictment, pleaded guilty to a superior court information charging him with grand larceny in the fourth degree and waived his right to appeal.  In exchange for his guilty plea, the People agreed to recommend a sentence of 11/212 to 3 years in prison and, if eligible, not object to defendant being placed in the Willard drug treatment program.  County Court accepted the plea agreement but stated that it was not committing to the recommended sentence, which defendant indicated he understood.  Thereafter, the court, noting that defendant was not eligible for placement in the Willard drug treatment program, sentenced defendant, as a second felony offender, to a prison term of 2 to 4 years, with a recommendation of shock incarceration.  Defendant appeals.

Defendant contends that his plea was induced by the promise of participation in the Willard drug treatment program and that, once it was determined that he was ineligible for such program, County Court erred in failing to provide him an opportunity to withdraw his plea.  Although defendant's contention, to the extent that it implicates the voluntariness of the plea, is not precluded by his unchallenged waiver of the right to appeal, it is nevertheless unpreserved as the record does not reflect that he objected to what he characterizes as an enhanced sentence nor did he make any postallocution motion to withdraw his plea (see People v. Tole, 119 A.D.3d 982, 983–984, 989 N.Y.S.2d 185 [2014];  People v. Henion, 110 A.D.3d 1349, 1350, 973 N.Y.S.2d 857 [2013], lv denied 22 N.Y.3d 1088, 981 N.Y.S.2d 674, 4 N.E.3d 976 [2014] ).  Were this issue before us, we would find it to be without merit.  A review of the record establishes that there was no commitment by the People or the court that defendant would be sentenced to the Willard drug treatment program.  Although the People agreed not to oppose such a sentence in the event that defendant was eligible therefor, the record reflects that, given defendant's prior violent felony conviction, such sentence was not available.  Moreover, the plea agreement form specifically provides that sentencing was at the sole discretion of the court and that defendant's plea was not conditioned upon or subject to the court committing to impose the recommended sentence agreed to by the People.  Moreover, during the plea colloquy, the court explicitly informed defendant that it was making no sentencing commitment and that the maximum sentence of 2 to 4 years could be imposed, which defendant assured the court he understood.  Under such circumstances, the court was under no obligation to provide defendant with an opportunity to withdraw his plea prior to imposing sentence (see People v. Anderson, 177 A.D.3d 1031, 1032, 114 N.Y.S.3d 124 [2019];  People v. Roberts, 38 A.D.3d 1014, 1014–1015, 831 N.Y.S.2d 568 [2007];  People v. Hynes, 3 A.D.3d 740, 740, 770 N.Y.S.2d 667 [2004];  People v. Gero, 286 A.D.2d 789, 789, 729 N.Y.S.2d 805 [2001], lv denied 97 N.Y.2d 641, 735 N.Y.S.2d 498, 761 N.E.2d 3 [2001] ).

ORDERED that the judgment is affirmed.

Lynch, J.

Garry, P.J., Clark, Devine and Reynolds Fitzgerald, JJ., concur.