Opinion
108123
08-02-2018
The PEOPLE of the State of New York, Respondent, v. Shane HOWE, Appellant.
Michelle E. Stone, Vestal, for appellant. Patrick A. Perfetti, District Attorney, Cortland (Elizabeth McGrath of counsel), for respondent.
Michelle E. Stone, Vestal, for appellant.
Patrick A. Perfetti, District Attorney, Cortland (Elizabeth McGrath of counsel), for respondent.
Before: McCarthy, J.P., Lynch, Devine, Clark and Rumsey, JJ.
MEMORANDUM AND ORDER
McCarthy, J.P.
Appeal from a judgment of the Supreme Court (Campbell, J.), rendered November 5, 2015 in Cortland County, convicting defendant upon his plea of guilty of the crime of unlawful imprisonment in the second degree.
In satisfaction of various charges, defendant pleaded guilty to unlawful imprisonment in the second degree in exchange for the People's promise to recommend a conditional discharge but with no sentencing commitment by Supreme Court. Defendant moved to withdraw his plea on the grounds that he is innocent and that the plea was not knowingly and intelligently entered as he was not aware of the consequences thereof. Supreme Court denied the motion and sentenced defendant to three years of probation. Defendant appeals.
Defendant's challenges to the factual sufficiency of the plea and the requirement that he admit that the children were present during the charged incident are unpreserved as those grounds were not advanced as a basis for his motion to withdraw (see People v. Delarosa, 104 A.D.3d 956, 956, 960 N.Y.S.2d 915 [2013], lv denied 21 N.Y.3d 1003, 971 N.Y.S.2d 255, 993 N.E.2d 1277 [2013] ; People v. Escalante, 16 A.D.3d 984, 984–985, 792 N.Y.S.2d 253 [2005], lvs denied 5 N.Y.3d 788, 793, 801 N.Y.S.2d 809, 814, 835 N.E.2d 669, 674 [2005] ). Further, we are unpersuaded by defendant's contention that the narrow exception to the preservation requirement applies (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). Were we to consider the issue, we would find that defendant's plea was voluntary. The record reflects that defendant acknowledged that he was freely and voluntarily entering the guilty plea after discussing the matter with counsel. Although, initially, defendant was reluctant to admit that he restrained the victim, after a brief recess in order for defendant to speak with counsel, defendant, in response to Supreme Court's inquiries, affirmatively acknowledged that, in an attempt to take a cell phone from the victim, he intentionally and substantially interfered with her liberty to move. Although the court questioned defendant about the presence of the children during the incident, such information was irrelevant to the crime to which he pleaded guilty and, therefore, it did not impact the voluntariness of the plea.
Next, defendant contends that counsel provided ineffective assistance in various respects. To the extent that defendant asserts that counsel failed to advise him or object to the additional allocution requirements in connection with the endangering the welfare of a child charge, as noted earlier, this had no bearing on the crime for which defendant pleaded guilty. Defendant's other allegations cannot be fully determined without considering information that is outside the record, so those arguments are more properly raised in a motion under CPL article 440. Given our review of the record, the advantageous plea agreement negotiated by counsel and defendant's acknowledgement during the plea allocution that he had sufficient time to discuss the matter with counsel and was satisfied with the services provided, we find that the record fails to support defendant's claim that he was deprived of meaningful representation (see People v. Pickett, 128 A.D.3d 1275, 1276, 9 N.Y.S.3d 737 [2015], lvs denied 26 N.Y.3d 933, 930, 17 N.Y.S.3d 96, 38 N.E.3d 842 [2015]; People v. Sylvan, 108 A.D.3d 869, 870, 969 N.Y.S.2d 578 [2013], lv denied 22 N.Y.3d 1091, 981 N.Y.S.2d 676, 4 N.E.3d 978 [2014] ; People v. Bean, 102 A.D.3d 1062, 1063, 958 N.Y.S.2d 241 [2013] ).
Finally, we have reviewed defendant's contention that the sentence of three years of probation was harsh and excessive and find it to be without merit.
ORDERED that the judgment is affirmed.
Lynch, Devine, Clark and Rumsey, JJ., concur.