        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

863
KA 12-00144
PRESENT: SMITH, J.P., PERADOTTO, SCONIERS, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RUBEN JOSE BURGOS, DEFENDANT-APPELLANT.


FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (PATRICK J. MARTHAGE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Michael L.
Dwyer, J.), rendered November 23, 2011. The judgment convicted
defendant, upon a jury verdict, of criminal contempt in the first
degree (three counts) and aggravated harassment in the second degree
(three counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of three counts each of criminal contempt in the
first degree (Penal Law § 215.51 [b] [iii]) and aggravated harassment
in the second degree (§ 240.30 [1] [a]). Defendant contends that his
rejection of the plea offer was not voluntary, knowing, and
intelligent because County Court misinformed him of the maximum
sentence he could receive after trial. While we agree with defendant
that the court’s statement concerning his maximum sentencing exposure
was erroneous, the record does not support his contention that
reversal of the judgment of conviction is required (see People v Lane,
221 AD2d 948, 948, lv denied 87 NY2d 975, cert denied 519 US 829).
Rather, the issue whether defendant would have accepted the plea offer
absent the court’s erroneous statement must be raised in a proceeding
pursuant to CPL article 440, “wherein a record focused on this issue
may be developed” (People v Surowka, 103 AD3d 985, 986; see e.g.
People v Ross, 123 AD3d 454, 454; see also Matter of Dong Chong v
Annucci, 50 AD3d 1331, 1332).

     We reject defendant’s further contention that his sentence is
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                                          KA 12-00144

unduly harsh and severe.




Entered:   July 2, 2015          Frances E. Cafarell
                                 Clerk of the Court
