         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
148
KA 10-00361
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RALPH T. GERALD, DEFENDANT-APPELLANT.


KIMBERLY J. CZAPRANSKI, INTERIM CONFLICT DEFENDER, ROCHESTER (JOSEPH
D. WALDORF OF COUNSEL), FOR DEFENDANT-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (HANNAH STITH LONG OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered February 2, 2010. The judgment
convicted defendant, upon his plea of guilty, of criminal possession
of a controlled substance in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice by reducing the determinate term of imprisonment to a term of
four years and as modified the judgment is affirmed.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of criminal possession of a controlled substance in the
second degree (Penal Law § 220.18 [1]), defendant contends that his
plea was not knowing, voluntary and intelligent because Supreme Court
failed to advise him that, upon his guilty plea, he would be required
to pay a mandatory surcharge and a DNA databank fee and that his
driver’s license would be suspended for six months. Defendant’s
contentions are not preserved for our review because he did not move
to withdraw his plea or move to vacate the judgment of conviction on
those grounds (see People v Young, 81 AD3d 995, 996, lv denied 16 NY3d
901; People v Anderson, 298 AD2d 869, 869, lv denied 99 NY2d 554). In
any event, those contentions are without merit. Although “a trial
court has no obligation to explain to defendants who plead guilty the
possibility that collateral consequences may attach to their criminal
convictions, the court must advise a defendant of the direct
consequences of the plea” (People v Catu, 4 NY3d 242, 244). “The
direct consequences of a plea—those whose omission from a plea
colloquy makes the plea per se invalid—are essentially the core
components of a defendant’s sentence” (People v Harnett, 16 NY3d 200,
205). A mandatory surcharge and DNA databank fee are not components
of defendant’s sentence (see People v Hoti, 12 NY3d 742, 743). Thus,
“the court’s failure [here] to pronounce the surcharge and fee[] prior
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                                                         KA 10-00361

to the entry of defendant’s plea did not deprive . . . defendant of
the opportunity to knowingly, voluntarily and intelligently choose
among alternative courses of action” (id.). Contrary to defendant’s
further contention, his plea was not rendered involuntary because the
court failed to advise him that his conviction would result in a six-
month suspension of his driver’s license. The loss of a driver’s
license is also a collateral consequence of a conviction and thus the
court’s failure to disclose that consequence during the plea colloquy
does not warrant vacatur of the plea (see People v Ford, 86 NY2d 397,
403).

     Defendant failed to preserve for our review his contention that
the court erred in imposing an enhanced sentence without affording him
an opportunity to withdraw his plea because defendant did not object
to the enhanced sentence, nor did he move to withdraw the plea or to
vacate the judgment on that ground (see People v Sprague, 82 AD3d
1649, 1649, lv denied 17 NY3d 801; People v Vaillant, 77 AD3d 1389,
1390). In any event, that contention lacks merit. The record
establishes that, at the time of his guilty plea, defendant “was
clearly informed of the consequences of his failure to appear at
sentencing and the date on which sentencing was scheduled, and he
nevertheless failed to appear on that date” (Sprague, 82 AD3d at
1649). Thus, upon defendant’s violation of a condition of the plea
agreement, the court was “no longer bound by the agreement and [was]
free to impose a greater sentence without offering defendant an
opportunity to withdraw his plea” (People v Santiago, 269 AD2d 770,
770; see People v Figgins, 87 NY2d 840, 841). Moreover, the court was
not required to conduct further inquiry into the cause of defendant’s
absence from a scheduled sentencing hearing because, “had there been
any plausible [medical] reason for defendant’s failure to appear on
the . . . prior scheduled sentencing date[], it is to be expected that
defendant would have been prepared at sentencing with some supporting
documentation, particularly after a warrant had been issued to secure
his appearance” (People v Goldstein, 12 NY3d 295, 301; see People v
Winters, 82 AD3d 1691, 1691, lv denied 17 NY3d 810).

     Insofar as defendant contends that defense counsel was
ineffective because he failed to produce documentary evidence that
would have explained defendant’s failure to appear at a scheduled
sentencing hearing, that contention concerns matters outside the
record on appeal and thus must be raised by way of a motion pursuant
to CPL article 440 (see generally People v Johnson, 81 AD3d 1428,
1428, lv denied 16 NY3d 896). Insofar as defendant otherwise contends
that he was denied his right to effective assistance of counsel, that
contention does not survive the plea of guilty because “[t]here is no
showing that the plea bargaining process was infected by [the]
allegedly ineffective assistance or that defendant entered the plea
because of his attorney[’s] allegedly poor performance” (People v
Robinson, 39 AD3d 1266, 1267, lv denied 9 NY3d 869 [internal quotation
marks omitted]).

     We agree with defendant, however, that the sentence is unduly
harsh and severe with respect to the imposition of a determinate term
of imprisonment of seven years. As a matter of discretion in the
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                                                         KA 10-00361

interest of justice (see CPL 470.15 [6] [b]), we therefore modify the
judgment by reducing the determinate term of imprisonment to a term of
four years.




Entered:   February 8, 2013                     Frances E. Cafarell
                                                Clerk of the Court
