People v Anonymous

People v Anonymous 2017 NY Slip Op 08471 Decided on December 5, 2017 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 December 5, 2017
Gische, J.P., Kapnick, Oing, Moulton, JJ.
5117 2779/09

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

v

Anonymous, Defendant-Appellant.

Rosemary Herbert, Office of the Appellate Defender, New York (Sharmeen Mazumder of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Paul A. Andersen of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Robert G. Seewald, J. at plea; Steven L. Barrett, J. at sentencing), rendered October 31, 2014, as amended, February 20, 2015, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender previously convicted of a violent felony, to a term of 10 years, unanimously affirmed.

Defendant's plea was not rendered invalid by the court's erroneous advice that the term of postrelease supervision would be five years, when in fact it was actually three years, because "warning defendant of a greater term of postrelease supervision than he actually faced. . . [did not] deprive defendant of the information he needed to knowingly, voluntarily and intelligently choose among alternative courses of action" (People v Carter, 67 AD3d 603, 604 [1st Dept 2009] [internal quotation marks omitted], lv denied 14 NY3d 886 [2010]; see also People v Collier, 22 NY3d 429, 434 [2013]). Defendant's related claim of ineffective assistance of counsel is without merit.

The record fails to support defendant's contention that the sentencing court misapprehended the extent of its discretion to impose a lower sentence than called for under the plea agreement. In any event, there is no reason to remand for resentencing, because there is no indication that any such error resulted in harm to defendant (see People v Barzge, 244 AD2d 213, 214 [1st Dept 1997], lv denied 91 NY2d 888 [1998]). Given the court's lengthy admonishment of defendant for failing to take responsibility for his actions, "there is no indication in the record that the sentencing court expressed any inclination, desire or basis for imposing a lesser sentence but refrained from imposing such a sentence due to its mistaken belief" (id.).

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 5, 2017

CLERK