PEOPLE v. DERUSHA (2026)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Washington County (Kelly McKeighan, J.), rendered June 23, 2023, convicting defendant upon his plea of guilty of the crime of assault in the second degree.

In satisfaction of a two-count indictment stemming from allegations that he attacked a correction officer while incarcerated, defendant pleaded guilty to one count of assault in the second degree.  The plea agreement contemplated that defendant would be sentenced, as a second felony offender, to 31/212 years in prison, to be followed by five years of postrelease supervision, and that such would run consecutively to the sentence he was already serving.  County Court imposed the agreed-upon sentence.  Defendant appeals.

We affirm.  Defendant first argues that his guilty plea was not knowing, voluntary or intelligent because County Court told him during the colloquy that the plea agreement contemplated a “minimum” consecutive sentence of 31/212 years in prison, but did not add that a lesser, concurrent prison term of three years was legally authorized (see Penal Law §§ 70.02[1][c];  70.06[6][c];  70.25, 120.05[7] ).  As defendant acknowledges, this argument is unpreserved given his failure to pursue it in an appropriate postallocution motion that he had ample time to make (see People v. Ellington, 248 AD3d 1566, 1567 [3d Dept 2026];  People v. Guerin, 248 AD3d 1500, 1500 [3d Dept 2026], lv denied 45 NY3d 1038 [2026] ).  Assuming, without deciding, that County Court's description of the plea agreement constituted “erroneous advice regarding a defendant's sentencing exposure” so as to implicate an exception to the preservation requirement (People v. Scott, 44 NY3d 302, 307 [2025];  but see People v. Gonzalez, 243 AD3d 485, 485–486 [1st Dept 2025], lv denied 45 NY3d 936 [2026] ), the record reflects that County Court's sole “mention of defendant receiving the ‘minimum’ sentence referred” to the agreed-upon sentence and gives no reason to believe that defendant, who acknowledged during the plea colloquy that he consulted with defense counsel to his satisfaction, misunderstood his potential sentencing exposure if he rejected the plea offer (People v. Concepcion, 210 AD3d 443, 444 [1st Dept 2022] [internal quotation marks and citation omitted], lv denied 39 NY3d 1071 [2023];  see People v. Gonzalez, 243 AD3d at 486;  People v. Principato, 194 AD3d 851, 852–853 [2d Dept 2021];  compare People v. Keller, 168 AD3d 1098, 1099–1100 [2d Dept 2019] ).  Accordingly, we would reject defendant's argument on the merits.

Finally, as our review of the record leaves us satisfied that the agreed-upon sentence is not unduly harsh or severe, we decline to modify it in the interest of justice (see People v. Jones, 212 AD3d 888, 891 [3d Dept 2023], lv denied 39 NY3d 1111 [2023];  People v. Baldwin, 197 AD3d 1442, 1443 [3d Dept 2021], appeal dismissed 39 NY3d 1097 [2023] ).

ORDERED that the judgment is affirmed.

Reynolds Fitzgerald, J.P.

Fisher, McShan, Mackey and Corcoran, JJ., concur.