PEOPLE v. CONSTANT

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The PEOPLE, etc., respondent, v. Emmanuel CONSTANT, appellant.

Decided: June 27, 2012

WILLIAM F. MASTRO, A.P.J., DANIEL D. ANGIOLILLO, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ. Lynn W. L. Fahey, New York, N.Y. (John Gemmill of counsel), for appellant. Eric T. Schneiderman, Attorney General, New York, N.Y. (Roseann B. MacKechnie and Hannah Stith Long of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gerges, J.), rendered October 28, 2008, convicting him of scheme to defraud in the first degree (two counts), falsifying business records in the first degree (two counts), grand larceny in the second degree (two counts), and grand larceny in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the trial court lacked authority to vacate his plea of guilty and his contention in his pro se supplemental brief that the trial court forced him to go to trial against his will by vacating his plea of guilty are unpreserved for appellate review, as he did not object on those grounds before the trial court (see CPL 470.05[2]; People v. Rosen, 96 N.Y.2d 329, 335, 728 N.Y.S.2d 407, 752 N.E.2d 844, cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160; People v. Olmstead, 77 A.D.3d 1179, 1181, 910 N.Y.S.2d 232). In any event, the contentions are without merit. The record reveals that the defendant rejected the option of an enhanced sentence. Thus, under the circumstances, the trial court properly vacated his plea of guilty (see People v. Rubendall, 4 A.D.3d 13, 17, 772 N.Y.S.2d 346; People v. Davis, 54 A.D.2d 410, 413, 389 N.Y.S.2d 94, revd. on other grounds 44 N.Y.2d 269, 405 N.Y.S.2d 428, 376 N.E.2d 901).

The defendant's contention in his pro se supplemental brief that he was entitled to specific performance of a plea agreement is not properly before this Court, since it is based upon matter dehors the record (see People v. Walters, 299 A.D.2d 377, 378, 749 N.Y.S.2d 156).

The defendant's contentions raised in his pro se supplemental brief that the trial court considered improper factors in refusing to impose the negotiated sentence pursuant to the plea deal and in vacating his plea are unpreserved for appellate review (see CPL 470.05[2]; People v. Rosen, 96 N.Y.2d at 335, 728 N.Y.S.2d 407, 752 N.E.2d 844; People v. Aviles, 87 A.D.3d 547, 548, 927 N.Y.S.2d 788). In any event, the contentions are without merit (see CPL 400.10[1]; Pepper v. United States, ––– U.S. ––––, ––––, 131 S.Ct. 1229, 1239, 179 L.Ed.2d 196 [2011]; People v. Hicks, 98 N.Y.2d 185, 188, 746 N.Y.S.2d 441, 774 N.E.2d 205; People v. Selikoff, 35 N.Y.2d 227, 238, 360 N.Y.S.2d 623, 318 N.E.2d 784, cert. denied 419 U.S. 1122, 95 S.Ct. 806, 42 L.Ed.2d 822; People v. Gray, 51 A.D.3d 945, 856 N.Y.S.2d 887; People v. Williams, 195 A.D.2d 492, 493, 599 N.Y.S.2d 848).

The defendant's contention that the trial court violated his state statutory right against double jeopardy by vacating his plea of guilty is unpreserved for appellate review (see CPL 470.05[2]; People v. Biggs, 1 N.Y.3d 225, 231, 771 N.Y.S.2d 49, 803 N.E.2d 370, cert. denied 555 U.S. 1179, 129 S.Ct. 1326, 173 L.Ed.2d 599). In any event, the contention is without merit (see People v. Rodriguez, 27 A.D.3d 585, 587, 811 N.Y.S.2d 752).

The defendant's contention in his pro se supplemental brief that the evidence was legally insufficient to support his convictions is unpreserved for appellate review (see CPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see Penal Law §§ 155.35, 155.40, 190.65; People v. Romero, 78 A.D.3d 740, 741, 909 N.Y.S.2d 911). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

Contrary to the defendant's contention, he was afforded the effective assistance of counsel (see Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674; People v. Turner, 5 N.Y.3d 476, 480, 806 N.Y.S.2d 154, 840 N.E.2d 123).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 85–86, 455 N.Y.S.2d 675).

The defendant's remaining contentions, raised in his pro se supplemental brief, are without merit.

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