PEOPLE v. FENNELL

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

The PEOPLE of the State of New York, Respondent, v. Enrico FENNELL, Also Known as Rico, Appellant.

Decided: June 28, 2001

Before:  MERCURE, J.P., CREW III, PETERS, CARPINELLO and ROSE, JJ. Jason Cooper, Albany, for appellant. Robert M. Carney, District Attorney (Alfred D. Chapleau of counsel), Schenectady, for respondent.

Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered October 19, 1998, convicting defendant upon his plea of guilty of the crimes of criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree.

After pleading guilty to criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree, defendant was sentenced to two consecutive prison terms of 2 to 6 years.   Defendant appeals contending that his guilty plea was not knowing, voluntary and intelligent because he thought he was receiving a prison sentence of 4 to 12 years.

 Initially, although defendant's waiver of his right to appeal at the time of his plea does not preclude him from subsequently arguing the voluntariness of his plea (see, People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022), inasmuch as defendant failed to withdraw his plea when given the opportunity by County Court at sentencing, this issue is not preserved for our review (see, People v. McFadgen, 274 A.D.2d 830, 831, 711 N.Y.S.2d 845, lv. denied 95 N.Y.2d 966, 722 N.Y.S.2d 484, 745 N.E.2d 404).   Were we to consider the merits, we would find that defendant entered a knowing, voluntary and intelligent plea.   At a hearing prior to sentencing, defendant expressed concern that consecutive sentences would affect his eligibility for temporary release.   County Court adjourned the proceeding and appointed new counsel for defendant so that the ramifications of receiving consecutive sentences could be explored.   After consulting with his new attorney, defendant indicated that he did not wish to withdraw his plea.   Based on these circumstances, defendant cannot be heard now to complain that his plea was not knowing, voluntary and intelligent.

ORDERED that the judgment is affirmed.

CARPINELLO, J.

MERCURE, J.P., CREW III, PETERS and ROSE, JJ., concur.

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