PEOPLE v. SIMPSON

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Supreme Court, Appellate Division, Third Department, New York.

The PEOPLE of the State of New York, Respondent, v. Rashawn SIMPSON, Appellant.

Decided: October 28, 2004

Before:  CARDONA, P.J., MERCURE, CARPINELLO, ROSE and LAHTINEN, JJ. Alexander W. Bloomstein, Hillsdale, for appellant. Robert M. Winn, District Attorney, Fort Edward, for respondent.

Appeal from a judgment of the County Court of Washington County (Hemmett Jr., J.), rendered July 1, 2002, convicting defendant upon his plea of guilty of the crime of aggravated harassment of an employee by an inmate.

 Upon entering a counseled Alford plea of guilty to the crime of aggravated harassment of an employee by an inmate, a class E felony, defendant was sentenced as a second felony offender to an agreed-upon prison term of 1 1/212 to 3 years, to run consecutively with the sentence he was then serving.   Defendant appeals.   Initially, as defendant failed to move to withdraw his plea or vacate the judgment of conviction, although clearly given the opportunity to do so by County Court, he is now precluded from challenging the voluntariness of the plea (see People v. Ruger, 279 A.D.2d 795, 796-797, 718 N.Y.S.2d 732 [2001], lv. denied 96 N.Y.2d 806, 726 N.Y.S.2d 384, 750 N.E.2d 86 [2001];  People v. Sims, 242 A.D.2d 758, 759, 661 N.Y.S.2d 852 [1997], lv. denied 91 N.Y.2d 930, 670 N.Y.S.2d 412, 693 N.E.2d 759 [1998] ).   In any event, the record reveals that County Court thoroughly apprised defendant of the nature and consequences of the plea, and defendant not only acknowledged that he understood the rights he would be relinquishing, after having adequate time to discuss the terms of the plea with counsel, but he further stated that he definitely wanted to plead guilty to avoid the possibility of receiving a harsher sentence if convicted after trial (see People v. Ruger, supra;  People v. Walton, 248 A.D.2d 803, 670 N.Y.S.2d 250 [1998], lv. denied 92 N.Y.2d 908, 680 N.Y.S.2d 72, 702 N.E.2d 857 [1998];  People v. White, 214 A.D.2d 811, 812, 625 N.Y.S.2d 675 [1995], lv. denied 86 N.Y.2d 742, 631 N.Y.S.2d 623, 655 N.E.2d 720 [1995] ).   Notably, County Court assured defendant several times, in response to his stated concerns, that he would receive a fair trial should he choose not to plead guilty.

Defendant's challenge to his sentence is also unavailing.   Defendant not only received the minimum sentence authorized by statute (see Penal Law § 70.06 [3] [c];  [4][b] ), but, contrary to defendant's contention, he was informed that he would be receiving a consecutive sentence, which, by statute, is mandatory (see Penal Law § 70.25[2-a] ), as is the assessed surcharge and crime victim assistance fee (see Penal Law former § 60.35[1][a] ).   Any remaining contentions have been reviewed and found meritless.

ORDERED that the judgment is affirmed.

ROSE, J.

CARDONA, P.J., MERCURE, CARPINELLO and LAHTINEN, JJ., concur.

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