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

3
KA 12-00320
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SHAWN OBBAGY, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


JEANNIE D. MICHALSKI, CONFLICT DEFENDER, GENESEO, FOR
DEFENDANT-APPELLANT.

GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Livingston County Court (Dennis S.
Cohen, J.), rendered October 20, 2011. The judgment convicted
defendant, upon his plea of guilty, of criminal mischief in the third
degree, driving while intoxicated, a misdemeanor, and resisting
arrest.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of, inter alia, criminal
mischief in the third degree (Penal Law § 145.05 [2]) and resisting
arrest (§ 205.30) arising from his conduct upon being arrested for
driving while intoxicated in a parking lot. In appeal No. 2,
defendant appeals from a judgment convicting him upon his plea of
guilty of criminal mischief in the third degree (§ 145.05 [2]) arising
from the damage that defendant caused to an SUV in the parking lot
while operating his vehicle. Defendant contends in both appeals that
his pleas of guilty to the counts of criminal mischief in the third
degree, which were made during a single plea colloquy, were not
knowingly, voluntarily, and intelligently entered. By failing to move
to withdraw his pleas or to vacate the judgment of conviction in each
appeal, defendant failed to preserve his contention for our review
(see People v Boyden, 112 AD3d 1372, 1372-1373, lv denied 23 NY3d
960). We conclude that this case does not fall within the narrow
exception to the preservation requirement because the plea colloquy
with respect to the criminal mischief crimes did not “clearly cast[]
significant doubt upon the defendant’s guilt or otherwise call[] into
question the voluntariness of the plea[s]” (People v Lopez, 71 NY2d
662, 666).
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                                                         KA 12-00320

     In any event, inasmuch as the record establishes that defendant
understood the consequences of his guilty pleas and that he was
pleading guilty in exchange for a negotiated sentence that was less
than the maximum term of imprisonment, we conclude that the pleas were
knowingly and voluntarily entered (see People v Cubi, 104 AD3d 1225,
1226-1227, lv denied 21 NY3d 1003). Contrary to defendant’s
contention, County Court did not err in advising him that he faced the
possibility of consecutive sentences if convicted following trial
because the criminal mischief charges arose from separate and distinct
acts as part of a single criminal episode (see People v Couser, 28
NY3d 368, ___; People v Peterson, 71 AD3d 1419, 1420, lv denied 14
NY3d 891, reconsideration denied 21 NY3d 1008). Contrary to
defendant’s further contention, “[a]lthough it is well settled that
‘[a] defendant may not be induced to plead guilty by the threat of a
heavier sentence if he [or she] decides to proceed to trial,’ ” we
conclude that the statements made by the court and the prosecutor
during the pre-plea proceedings “ ‘amount to a description of the
range of the potential sentences’ rather than impermissible coercion”
(People v Boyde, 71 AD3d 1442, 1443, lv denied 15 NY3d 747; see People
v Boyd, 101 AD3d 1683, 1683-1684). “ ‘The fact that defendant may
have pleaded guilty to avoid receiving a harsher sentence does not
render his plea[s] coerced’ ” (Boyde, 71 AD3d at 1443).

     Finally, defendant’s challenge in appeal No. 1 to the sufficiency
of the evidence of his guilt with respect to resisting arrest was
forfeited by his plea of guilty (see People v Boyland, 128 AD3d 1538,
1539, lv denied 25 NY3d 1198).




Entered:   February 3, 2017                     Frances E. Cafarell
                                                Clerk of the Court
