                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: January 19, 2017                    107730
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

TIMOTHY A. MILLS,
                    Appellant.
________________________________


Calendar Date:   December 13, 2016

Before:   McCarthy, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.

                              __________


      Susan Patnode, Rural Law Center of New York, Castleton
(Cynthia Feathers of counsel), for appellant.

      Mary E. Rain, District Attorney, Canton (Marquetta Christy
of counsel), for respondent.

                              __________


Egan Jr., J.

      Appeal from a judgment of the County Court of St. Lawrence
County (Richards, J.), rendered May 11, 2015, convicting
defendant upon his plea of guilty of the crime of rape in the
first degree.

      In March 2015, defendant waived indictment and agreed to be
prosecuted pursuant to a superior court information charging him
with one count of rape in the second degree. The charge stemmed
from an incident that occurred in May 2014, at which time
defendant engaged in sexual intercourse with a 14-year-old female
relative. Pursuant to a negotiated plea agreement, defendant
executed a written waiver of the right to appeal and agreed to
plead guilty to rape in the second degree in exchange for a
                              -2-                107730

sentence of six months in the local jail and 10 years of
probation. During the course of the plea colloquy, defendant was
advised to cooperate with the Probation Department and was warned
that if he "fail[ed] to abide by the jail rules" while he was
awaiting sentencing, County Court would not be bound by its
sentencing commitment.

      During his presentencing interview with the Probation
Department, defendant "adamantly denied any sexual contact with
the victim" – claiming that he suffered from erectile dysfunction
and characterizing the victim as "vindictive." Upon reviewing
defendant's statements to the Probation Department, which
directly contradicted his sworn plea allocution, County Court
indicated that it no longer could honor its prior sentencing
commitment. Following a bench conference, defendant was advised
that he could reallocute to the charged crime under oath, in
which case County Court would sentence him to four years in
prison followed by eight years of postrelease supervision, or he
could move to withdraw his plea, which County Court indicated it
was "prepared to let him do." In conjunction therewith, County
Court alerted defendant to the "possibility" that, if he elected
to withdraw his plea, the People could re-present the charges and
advised defendant as to both the potential charges that the
People could seek and his sentencing exposure relative thereto.
After being afforded an opportunity to discuss his options with
counsel, defendant again pleaded guilty (without reference to his
previously executed waiver of the right to appeal) to rape in the
second degree and was sentenced to four years in prison followed
by eight years of postrelease supervision. Defendant now
appeals, contending that County Court's comments regarding the
possibility of additional charges and defendant's potential
sentencing exposure constituted coercion.

      Absent an appropriate postallocution motion, defendant's
challenge to the voluntariness of his plea is unpreserved for our
review (see People v Lobaton, 140 AD3d 1534, 1535 [2016], lv
denied 28 NY3d 972 [2016]; People v White, 139 AD3d 1260, 1260
[2016]). Further, given that defendant was expressly afforded an
opportunity to withdraw his plea, we are not persuaded that this
is one of those rare cases where a "defendant had no practical
ability to assert that the plea was invalid prior to the
                              -3-                  107730

imposition of sentence" (People v Williams, 27 NY3d 212, 220
[2016]). Hence, we discern no exception to the preservation
requirement. That said, even assuming that defendant's challenge
to the voluntariness of his plea was properly before us, we would
find it to be lacking in merit. Simply put, neither the
possibility that the People might pursue additional charges
against defendant, County Court's ensuing explanation as to the
potential nature of those charges and defendant's possible
sentencing exposure relative thereto nor the short period of time
within which defendant was required to accept or reject the plea
offer "constituted coercion to induce defendant's guilty plea"
(People v Goodell, 104 AD3d 1026, 1026 [2013], lv denied 22 NY3d
1138 [2014]; see People v Lobaton, 140 AD3d at 1535; People v
O'Neill, 116 AD3d 1240, 1241 [2014]; People v Wolf, 88 AD3d 1266,
1267 [2011], lvs denied 18 NY3d 863 [2011]). At best, the
pressure to which defendant now claims he was subjected "amounts
to the type of situational coercion faced by many defendants [who
are] offered a plea deal," which, in turn, would be insufficient
to undermine the voluntariness of defendant's plea (People v
Taylor, 135 AD3d 1237, 1237 [2016] [internal quotation marks and
citations omitted], lv denied 27 NY3d 1075 [2016]). Accordingly,
County Court's judgment is affirmed.

     McCarthy, J.P., Lynch, Clark and Aarons, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
