People v Carrington |
2021 NY Slip Op 03215 [194 AD3d 1253] |
May 20, 2021 |
Appellate Division, Third Department |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
The People of the State of New York,
Respondent, v Derrick Carrington, Also Known as D-Magic, Appellant. |
John B. Casey, Cohoes, for appellant.
Letitia James, Attorney General, New York City (Lisa Fleischmann of counsel), for respondent.
Clark, J. Appeal from a judgment of the County Court of Schenectady County (Sira, J.), rendered December 18, 2017, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a controlled substance in the third degree.
Defendant and numerous codefendants were charged in a multicount indictment with various
drug-related crimes arising from their participation in a large-scale narcotics distribution
network. In satisfaction of the five charges brought against defendant, the People extended a plea
offer under which defendant would plead guilty to attempted criminal possession of a controlled
substance in the third degree and be sentenced, as a predicate felon, to a prison term of no more
than 2
Initially, defendant contends that County Court improperly enhanced the sentence and
imposed a three-year period of postrelease supervision contrary to the parties' joint
recommendation that a shorter 2
In addition, defendant asserts that County Court did not conduct an adequate inquiry into the voluntariness of his guilty plea given his postplea statement in which he suggested that he possessed the drugs only for his personal use. This claim, however, [*2]has not been preserved for our review as the record fails to disclose that defendant made an appropriate postallocution motion and, under these circumstances, the narrow exception to the preservation requirement is inapplicable (see People v Hemingway, 192 AD3d 1266, 1267 [2021]; People v Mosher, 191 AD3d 1170, 1171 [2021]). Likewise, defendant's claim that he was denied the opportunity to controvert the allegations contained in the predicate felony statement (see CPL 400.21 [3]) is unpreserved given his failure to object at sentencing (see People v Hummel, 127 AD3d 1506, 1507 [2015], lv denied 25 NY3d 1202 [2015]; People v House, 119 AD3d 1289, 1290 [2014]). For the same reason, his claim that he was denied the opportunity to make a personal statement prior to sentencing (see CPL 380.50 [1]) is unpreserved (see People v Weis, 171 AD3d 1403, 1404 n [2019]; People v Morales-Lopez, 110 AD3d 1248, 1249 [2013], lv denied 22 NY3d 1140 [2014]), and, in any event, is belied by the record as the court asked defendant during the sentencing proceeding if he wished to be heard and he specifically declined.
Lastly, the parties agree that the uniform sentence and commitment form inaccurately reflects that defendant was sentenced as a second felony offender when, in fact, he was sentenced as a second felony drug offender. The record discloses that the certificate of conviction contains the same error. Consequently, both documents must be amended accordingly (see People v Scharborough, 189 AD3d 1964, 1967 [2020]; People v Morton, 173 AD3d 1464, 1466 [2019], lv denied 34 NY3d 935 [2019]; People v Miller, 172 AD3d 1530, 1532-1533 [2019], lv denied 34 NY3d 935 [2019]).
Egan Jr., J.P., Aarons, Pritzker and Reynolds Fitzgerald, JJ., concur. Ordered that the judgment is affirmed, and matter remitted for entry of an amended uniform sentence and commitment form and certificate of conviction.