Opinion
10970
April 17, 2003.
Appeal from a judgment of the County Court of Clinton County (McGill, J.), rendered June 5, 1998, convicting defendant upon his plea of guilty of the crimes of assault in the second degree (two counts) and endangering the welfare of a child (two counts).
Theresa M. Suozzi, Saratoga Springs, for appellant.
Richard E. Cantwell, District Attorney, Plattsburgh, for respondent.
Before: Cardona, P.J., Mercure, Peters, Carpinello and Rose, JJ.
MEMORANDUM AND ORDER
After his arrest on charges stemming from the mistreatment of his children, defendant waived indictment and agreed to be prosecuted by superior court information. Although a plea agreement was reached whereby defendant would enter Alford pleas to certain of the charges and allocute to the remaining charges in exchange for a sentence recommendation of six months' incarceration and five years' probation, County Court deemed defendant's allocution insufficient and refused to accept his guilty pleas. At a subsequent proceeding, defendant waived his right to appeal and entered Alford pleas to all pending charges. Sentencing was adjourned to permit a new sentencing agreement to be reached at the court's behest, and defendant was later sentenced in accordance with that agreement to concurrent prison terms of 1½ to 3 years on his two convictions of assault in the second degree and concurrent prison terms of one year on his two convictions of endangering the welfare of a child. Defendant appeals.
Initially, we note that defendant's failure to make a motion to withdraw his guilty plea or to vacate the judgment of conviction renders his challenge to the voluntariness of his plea unpreserved (see People v. Barnes, 302 A.D.2d 623, 753 N.Y.S.2d 760, 761; People v. Fulford, 296 A.D.2d 661, 662; People v. Doty, 267 A.D.2d 616, 617). In any event, the record reflects that County Court ascertained that defendant understood the nature and consequences of his Alford pleas, including the rights being waived, was not impaired and had not been coerced into entering the plea. Accordingly, we conclude that defendant's plea was knowing, voluntary and intelligent.
We reject defendant's claim of ineffective assistance of counsel. While defendant claims that counsel misled him regarding his sentencing exposure, the record reflects that defendant was sentenced in accordance with a sentencing agreement negotiated between the parties. As regards defendant's related claim that counsel failed to investigate possible defenses, based on the limited record before us (see People v. Jones, 55 N.Y.2d 771, 773; People v. Gregory, 290 A.D.2d 810, 811, lv denied 98 N.Y.2d 675), we conclude that defendant received meaningful representation (see People v. Baldi, 54 N.Y.2d 137, 147).
Defendant's claim that County Court should have recused itself was waived in the course of defendant's knowing and voluntary guilty plea (see People v. Palermo, 301 A.D.2d 957, 957, 753 N.Y.S.2d 402, 403;People v. Lanahan, 276 A.D.2d 906, 909, lv denied 95 N.Y.2d 965) and, in any event, is without merit (see Matter of Murphy v. Ulster County, 82 N.Y.2d 491, 495). Finally, defendant's claim that his sentence is harsh and excessive was also encompassed by his waiver of the right to appeal (see People v. Hidalgo, 91 N.Y.2d 733, 737; People v. Fulford,supra) and we see no extraordinary circumstances warranting modification of his sentence in the interest of justice (see People v. Coleman, 296 A.D.2d 766, 768, lv denied 99 N.Y.2d 534; People v. Dolphy, 257 A.D.2d 681, 685, lv denied 93 N.Y.2d 872).
Cardona, P.J., Mercure, Peters and Carpinello, JJ., concur.
ORDERED that the judgment is affirmed.