State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 17, 2016 106732 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

VINCENT GIAMMICHELE,

Appellant.

________________________________

Calendar Date: October 20, 2016

Before: McCarthy, J.P., Lynch, Devine, Mulvey and Aarons, JJ.

__________

Brian M. Callahan, Schenectady, for appellant.

D. Holley Carnright, District Attorney, Kingston (Joan

Gudesblatt Lamb of counsel), for respondent.

__________

Devine, J.

Appeal from a judgment of the County Court of Ulster County 

(Williams, J.), rendered June 21, 2013, convicting defendant upon

his plea of guilty of the crime of criminal sale of a controlled

substance in the third degree. 

In full satisfaction of a 10-count indictment, defendant

pleaded guilty to one count of criminal sale of a controlled

substance in the third degree and waived his right to appeal. In

exchange for his plea, defendant was promised a prison sentence

of seven years conditioned upon, among other things, not

committing any new offenses prior to sentencing. Shortly before

sentencing, defendant was arrested and charged with unlawful

possession of marihuana and possession of contraband in prison in

the second degree. Defendant then admitted at sentencing that he
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had violated one of the conditions imposed by County Court at the

time of his plea. County Court accordingly sentenced defendant,

a second felony offender, to a prison term of eight years to be

followed by two years of postrelease supervision, and ordered him

to pay $500 in restitution. Defendant now appeals. 

We affirm. Defendant argues that his plea was invalid

because County Court failed to sufficiently advise him that he

would be giving up certain rights by pleading guilty (see People

v Tyrell, 22 NY3d 359, 365 [2013]; see also Boykin v Alabama, 395

US 238, 243 [1969]; People v Vences, 125 AD3d 1050, 1051 [2015]). 

While this challenge survives defendant's valid appeal waiver

(see People v Klinger, 129 AD3d 1115, 1116 [2015]; People v

Miner, 120 AD3d 1449, 1449 [2014]), it was not preserved for our

review by an appropriate postallocution motion in the ample

period between plea and sentencing (see People v Conceicao, 26

NY3d 375, 382 [2015]; People v Sommers, 140 AD3d 1537, 1537

[2016], lv denied 28 NY3d 974 [2016]). In any event, the plea

colloquy leaves no doubt that defendant was aware of the rights

he was giving up by pleading guilty and made a knowing, voluntary

and intelligent decision to proceed (see People v Tyrell, 22 NY3d

at 365; People v Sommers, 140 AD3d at 1538).

Defendant further contends that County Court erred in

imposing an enhanced sentence because he was not advised of the

possible maximum term of imprisonment that he could receive if he

violated the terms and conditions of his plea. This contention

is also unpreserved for our review due to defendant's failure to

either object to the enhanced sentence or make an appropriate

postallocution motion, and the record gives us no reason to take

corrective action in the interest of justice (see People v Tole,

119 AD3d 982, 984 [2014]; People v Overton, 105 AD3d 1072, 1072-

1073 [2013]). 

McCarthy, J.P., Lynch, Mulvey and Aarons, JJ., concur.
-3- 106732 

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court