People v Charleston

People v Charleston 2011 NY Slip Op 07350 Decided on October 20, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 20, 2011
Gonzalez, P.J., Mazzarelli, Sweeny, Abdus-Salaam, Román, JJ.
5772 4809/08

[*1]The People of the State of New York, Respondent,

v

James Charleston, Defendant-Appellant.




Robert S. Dean, Center for Appellate Litigation, New York
(Carl S. Kaplan of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (David C.
Bornstein of counsel), for respondent.

Judgment, Supreme Court, New York County (Rena K. Uviller, J. at suppression hearing; Renee A. White, J. at plea and sentencing), rendered June 23, 2009, convicting defendant of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender whose prior conviction was a violent felony, to a term of 8 years, unanimously affirmed.

The court properly denied defendant's motion to withdraw his guilty plea (see People v Frederick, 45 NY2d 520 [1978]). At sentencing, defense counsel simply announced that defendant wished to withdraw his plea. Although defendant and his counsel received a suitable opportunity to speak, neither provided any ground for the motion. Defendant asserts that he also made a written plea withdrawal motion. Although the record on appeal contains a copy of such a motion, there is no evidence that the motion was ever filed, or that the sentencing court knew of its existence. In any event, the contents of the written motion did not require withdrawal of the plea. The plea allocution establishes that the plea was knowing, intelligent and voluntary, and it refutes defendant's claim of innocence.

Defendant's claim regarding an alleged violation of People v Rosario (9 NY2d 286 [1961], cert denied 368 US 866 [1961]) was forfeited by his guilty plea (see People v Delgado, 4 [*2]AD3d 310, 311 [2004], lv denied 2 NY3d 798 [2004]), as well as being both unpreserved and without merit.

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 20, 2011

CLERK