Opinion
2012-04-20
The PEOPLE of the State of New York, Respondent, v. Thomas A. CULVER, Jr., Defendant–Appellant.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered July 6, 2010. The judgment convicted defendant, upon his plea of guilty, of grand larceny in the fourth degree.Bridget L. Field, Rochester, for defendant-appellant. Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for respondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered July 6, 2010. The judgment convicted defendant, upon his plea of guilty, of grand larceny in the fourth degree.Bridget L. Field, Rochester, for defendant-appellant. Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for respondent.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of grand larceny in the fourth degree (Penal Law § 155.30[1] ), defendant contends that he was denied effective assistance of counsel. We reject that contention. Defendant's contention “ ‘survives his guilty plea only to the extent that defendant contends that his plea was infected by the alleged ineffective assistance’ ” ( People v. Garner, 86 A.D.3d 955, 956, 926 N.Y.S.2d 796; see People v. Gleen, 73 A.D.3d 1443, 1444, 900 N.Y.S.2d 812, lv. denied 15 N.Y.3d 773, 907 N.Y.S.2d 462, 933 N.E.2d 1055). “In the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of [defense] counsel” ( People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265), and upon our review of the record we conclude that defendant was afforded such meaningful representation here. “ ‘To the extent that defendant contends that defense counsel was ineffective because he coerced defendant into pleading guilty, that contention is belied by defendant's statement during the plea colloquy that the plea was not the result of any [force] or coercion’ ” ( Garner, 86 A.D.3d at 956, 926 N.Y.S.2d 796), and by his statement “that he was satisfied with the representation of defense counsel” ( People v. Strasser, 83 A.D.3d 1411, 1411, 919 N.Y.S.2d 454). Under the circumstances of this case, we reject defendant's contention that defense counsel was ineffective when defense counsel allegedly induced defendant to plead guilty by misinforming him of his sentence exposure ( see generally Ford, 86 N.Y.2d at 404, 633 N.Y.S.2d 270, 657 N.E.2d 265). Misinformation as to the possible sentence to which a defendant is exposed “ is [a] factor which must be considered by the court [in determining whether a plea was knowing, intelligent and voluntary and thus whether the plea was infected by the misinformation, rendering defense counsel ineffective], but it is not, in and of itself, dispositive” ( People v. Garcia, 92 N.Y.2d 869, 870, 677 N.Y.S.2d 772, 700 N.E.2d 311; see People v. Morrison, 78 A.D.3d 1615, 1616, 911 N.Y.S.2d 541, lv. denied 16 N.Y.3d 834, 921 N.Y.S.2d 198, 946 N.E.2d 186). Indeed, “[w]hether a plea was knowing, intelligent and voluntary is dependent upon a number of factors[,] including the nature and terms of the agreement, the reasonableness of the bargain, and the age and experience of the accused” ( Garcia, 92 N.Y.2d at 870, 677 N.Y.S.2d 772, 700 N.E.2d 311; see Morrison, 78 A.D.3d at 1616, 911 N.Y.S.2d 541). To the extent that defendant's contention that he was denied effective assistance of counsel is based on matters outside the record, it must be raised by way of a motion pursuant to CPL article 440 ( see People v. Johnson, 81 A.D.3d 1428, 1428, 917 N.Y.S.2d 487, lv. denied 16 N.Y.3d 896, 926 N.Y.S.2d 31, 949 N.E.2d 979; People v. Joyner, 19 A.D.3d 1129, 1130, 796 N.Y.S.2d 818). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.