Opinion
105691
07-02-2015
The PEOPLE of the State of New York, Respondent, v. Roy KUHLMANN, Appellant.
Robert A. Regan, Glens Falls, for appellant, and appellant pro se. Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.
Robert A. Regan, Glens Falls, for appellant, and appellant pro se.
Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, GARRY and LYNCH, JJ.
Opinion
GARRY, J.Appeal from a judgment of the County Court of Warren County (Hall, J.), rendered December 19, 2012, convicting defendant upon his plea of guilty of the crime of assault in the second degree.
In satisfaction of a 10–count indictment and other potential charges arising from multiple acts of domestic violence against his girlfriend in 2011 and 2012, defendant pleaded guilty to assault in the second degree, admitting that he intentionally caused serious physical injuries to her. In exchange, he was promised a sentence not to exceed 5 ½ years in prison and five years of postrelease supervision. At sentencing, defendant discharged his attorney and proceeded pro se, and County Court imposed a prison sentence of 5 ½ years with three years of postrelease supervision and an order of protection was issued in favor of the victim. Defendant appeals.
We affirm. Initially, defendant's contention that he discharged his assigned counsel prior to the plea proceedings is not supported by the record, which reveals that defendant affirmed that assigned counsel continued to represent him and was authorized to speak on his behalf, and that he was satisfied with her representation. When defendant discharged counsel at sentencing, he neither requested nor demonstrated good cause for the appointment of substitute counsel (see People v. Porto, 16 N.Y.3d 93, 99–100, 917 N.Y.S.2d 74, 942 N.E.2d 283 [2010] ). Defendant's further challenge to his guilty plea as involuntary was not, as he claims, preserved for our review by an appropriate postallocution motion to withdraw his guilty plea (see People v. Guyette, 121 A.D.3d 1430, 1431, 995 N.Y.S.2d 395 [2014] ), and he did not make any statements during the plea allocution that triggered the narrow exception to the preservation requirement (see People v. Tyrell, 22 N.Y.3d 359, 363–364, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013] ; People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). In any event, the record reflects that defendant's plea was knowing, voluntary and intelligent (see People v. Tyrell, 22 N.Y.3d at 365, 981 N.Y.S.2d 336, 4 N.E.3d 346 ), and his argument that the indictment was not supported by legally sufficient evidence was waived by his valid guilty plea (see People v. Hansen, 95 N.Y.2d 227, 233, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ; People v. Caban, 89 A.D.3d 1321, 1322, 932 N.Y.S.2d 923 [2011] ). Further, defendant's pro se allegation that County Court and defense counsel “changed the record” to alter the terms of the plea agreement is not supported by the record before us and, given that it concerns matters outside the record, it is more properly raised in a CPL article 440 motion (see People v. Elliott, 62 A.D.3d 1098, 1099, 879 N.Y.S.2d 236 [2009], lv. denied 12 N.Y.3d 924, 884 N.Y.S.2d 706, 912 N.E.2d 1087 [2009] ; People v. Ramey, 123 A.D.3d 1290, 1291, 996 N.Y.S.2d 793 [2014], lv. denied 25 N.Y.3d 953, 7 N.Y.S.3d 282, 30 N.E.3d 173 [2015] ). Defendant's related claim that County Court promised him a three-year sentence is belied by the record (see People v. La Porte, 31 A.D.3d 800, 801, 819 N.Y.S.2d 317 [2006], lv. denied 7 N.Y.3d 849, 823 N.Y.S.2d 779, 857 N.E.2d 74 [2006] ). Finally, in view of defendant's extensive criminal history, the violent nature of the charged conduct and his lack of remorse, we find no extraordinary circumstances or abuse of discretion warranting a reduction of the negotiated sentence in the interest of justice (see People v. Shan, 117 A.D.3d 1098, 1098–1099, 985 N.Y.S.2d 187 [2014], lv. denied 23 N.Y.3d 1042, 993 N.Y.S.2d 256, 17 N.E.3d 511 [2014] ).
ORDERED that the judgment is affirmed.
PETERS, P.J., LAHTINEN and LYNCH, JJ., concur.