People v Hamilton

People v Hamilton 2007 NY Slip Op 08648 [45 AD3d 1396] November 9, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

The People of the State of New York, Respondent, v Ernest Hamilton, Appellant.

—[*1] D.J. & J.A. Cirando, Esqs., Syracuse (Robert H. Middlemiss of counsel), for defendant-appellant. Cindy F. Intschert, District Attorney, Watertown (Matthew A. Goettel of counsel), for respondent.

Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), rendered October 17, 2005. The judgment convicted defendant, upon his plea of guilty, of attempted promoting prison contraband in the first degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted promoting prison contraband in the first degree (Penal Law §§ 110.00, 205.25 [2]). Defendant failed to move to withdraw his plea or to vacate the judgment of conviction and thus failed to preserve for our review his challenge to the factual sufficiency of the plea allocution (see People v Lopez, 71 NY2d 662, 665 [1988]; People v McGrail, 42 AD3d 962 [2007], lv denied 9 NY3d 878 [2007]; People v Hakes, 38 AD3d 1273 [2007]). In any event, the record establishes that defendant's contention is without merit. Defendant waived his further contention that County Court erred in closing the courtroom at the time of the plea. "The right to a public trial may be waived by failure to make appropriate objection" (People v Brown, 278 AD2d 60 [2000], lv denied 96 NY2d 798 [2001]), and here defendant failed to make an objection.

Finally, defendant contends that his plea was coerced because the court advised him of the potential terms of incarceration in the event of a conviction following a trial. The record does not support that contention. "The court, 'while impressing upon defendant the strength of the People's case, the potential sentence to which defendant was exposed under the indictment, and the favorableness of the plea bargain, reiterated throughout the colloquy that the decision to either plead guilty or go to trial remained with the defendant' " (People v Campbell, 236 AD2d 877, 878 [1997]; see People v Villone, 302 AD2d 866 [2003], lv denied 4 NY3d 768 [2005]; see also People v Hobart, 286 AD2d 916, 917 [2001], lv denied 97 NY2d 683 [2001]). Present—Scudder, P.J., Hurlbutt, Smith, Fahey and Pine, JJ.