PEOPLE v. GRAY (2023)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Alexander Jeong, J.), rendered March 6, 2018, convicting him of criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that his plea of guilty was not knowing, intelligent, and voluntary is unpreserved for appellate review, as he did not move to withdraw his plea or otherwise raise the issue before the Supreme Court (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. McDonnell, 214 A.D.3d 826, 827, 183 N.Y.S.3d 756).  Contrary to the defendant's contention, an exception to the preservation requirement does not apply here because the defendant's allocution did not cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of his plea (see People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Ramos, 164 A.D.3d 922, 923, 82 N.Y.S.3d 103).  In any event, the record demonstrates that the defendant's plea of guilty was knowingly, voluntarily, and intelligently entered (see People v. Conceicao, 26 N.Y.3d 375, 384, 23 N.Y.S.3d 124, 44 N.E.3d 199;  People v. Guzman, 213 A.D.3d 866, 182 N.Y.S.3d 639;  People v. Marinos, 209 A.D.3d 875, 176 N.Y.S.3d 316).  Contrary to the defendant's contention, his one-word responses did not render the plea invalid (see People v. Persaud, 212 A.D.3d 654, 655, 179 N.Y.S.3d 617).  Also contrary to the defendant's contention, his postplea statements reflected in the presentence report did not obligate the court to conduct a sua sponte inquiry concerning his usage of drugs (see People v. Lorenzo–Perez, 203 A.D.3d 847, 848, 160 N.Y.S.3d 895).

By entering a plea of guilty, the defendant forfeited appellate review of his claim of ineffective assistance of counsel to the extent that the claim does not directly involve the plea negotiation or sentence (see People v. Leshore, 208 A.D.3d 1364, 1365, 174 N.Y.S.3d 604;  People v. Pil–Yong Yoo, 208 A.D.3d 1257, 1258, 174 N.Y.S.3d 274).  To the extent the defendant contends that the alleged ineffective assistance of counsel relates to the negotiation of the plea and sentence, the record demonstrates that the defendant received an advantageous plea, and nothing in the record casts doubt on the apparent effectiveness of counsel (see People v. Bailey, 200 A.D.3d 703, 704, 154 N.Y.S.3d 849;  People v. Arce, 196 A.D.3d 696, 696–697, 148 N.Y.S.3d 687;  People v. Brown, 170 A.D.3d 878, 879, 96 N.Y.S.3d 110).

The defendant's contention that he was improperly sentenced as a second felony drug offender is without merit.  The People sustained their burden of proving beyond a reasonable doubt that the defendant was previously convicted of a felony upon which his adjudication as a second felony drug offender was premised, and the defendant failed to establish that the prior conviction was unconstitutionally obtained (see CPL 400.21;  People v. Quinn, 124 A.D.3d 916, 916–917, 998 N.Y.S.2d 904;  People v. Myron, 28 A.D.3d 681, 684, 814 N.Y.S.2d 198).

To the extent the defendant contends that the sentence imposed constituted cruel and unusual punishment, the defendant's contention is unpreserved for appellate review and, in any event, without merit (see People v. Delacruz, 213 A.D.3d 691, 180 N.Y.S.3d 916;  People v. Ormsby, 207 A.D.3d 573, 169 N.Y.S.3d 853).  Further, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions are without merit.

DUFFY, J.P., CHAMBERS, WOOTEN and DOWLING, JJ., concur.