Opinion
2014-07-24
The PEOPLE of the State of New York, Respondent, v. Raymond R. WASLEY, Appellant.
Linda B. Johnson, West Sand Lake, for appellant. Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.
Linda B. Johnson, West Sand Lake, for appellant. Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.
Before: LAHTINEN, J.P., MCCARTHY, ROSE, LYNCH and DEVINE, JJ.
ROSE, J.
Appeal from the judgment of the County Court of Broome County (Smith, J.), rendered May 14, 2010, convicting defendant upon his plea of guilty of the crime of attempted criminal sexual act in the first degree.
Pursuant to a plea agreement and in satisfaction of a three-count indictment, defendant entered a guilty plea to the second count, as reduced, admitting that he was guilty of attempted criminal sexual act in the first degree. The charges stemmed from his attempt, at knife point, to engage in sexual conduct with an adult male by forcible compulsion. He was sentenced, as an admitted second felony offender, to the agreed-upon prison term of 10 years, with 10 years of postrelease supervision. Defendant now appeals.
We affirm. Given that the record does not reflect that defendant moved to withdraw his guilty plea, his challenges to the voluntariness and factual sufficiency of the plea and the effectiveness of his counsel are not preserved for appellate review ( see People v. Watson, 115 A.D.3d 1016, 1017, 981 N.Y.S.2d 627 [2014];People v. White, 104 A.D.3d 1056, 1056, 961 N.Y.S.2d 603 [2013],lvs. denied21 N.Y.3d 1018, 1021, 971 N.Y.S.2d 500, 503, 994 N.E.2d 396, 399 [2013] ). Contrary to defendant's claims, the narrow exception to the preservation requirement was not triggered during the plea colloquy here, as defendant did not make any statements during the allocution that called into doubt the voluntariness of his plea or that were inconsistent with his guilt ( see People v. Lopez, 71 N.Y.2d 662, 666–667, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988];People v. Bressard, 112 A.D.3d 988, 989, 976 N.Y.S.2d 302 [2013],lv. denied22 N.Y.3d 1137, 983 N.Y.S.2d 495, 6 N.E.3d 614 [2014] ). The fact that, during a prior proceeding, defendant had been hesitant or unwilling to fully allocute to the charged conduct did not undermine his subsequent unqualified allocution to the reduced charge ( see People v. Good, 83 A.D.3d 1124, 1125, 920 N.Y.S.2d 464 [2011],lv. denied17 N.Y.3d 816, 929 N.Y.S.2d 805, 954 N.E.2d 96 [2011] ).
In any event, the record reveals that the plea colloquy, while brief, adequately established that defendant understood and voluntarily agreed to the plea terms that he had discussed at length with counsel, and that he admitted that he had engaged in the specific charged conduct ( see People v. Brown, 14 N.Y.3d 113, 116, 897 N.Y.S.2d 674, 924 N.E.2d 782 [2010];People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 [1993] ). Further, the record does not support defendant's contention that he was confused or unable to comprehend the proceedings. Likewise, defendant received an advantageous plea, and nothing in the record supports his assertion that defense counsel provided ineffective assistance during the plea proceedings, or failed to protect his rights ( see People v. Leszczynski, 96 A.D.3d 1162, 1162, 948 N.Y.S.2d 125 [2012],lv. denied19 N.Y.3d 998, 951 N.Y.S.2d 474, 975 N.E.2d 920 [2012];People v. Good, 83 A.D.3d at 1126, 920 N.Y.S.2d 464). To the extent that these claims concern matters outside the record on appeal, they are more appropriately addressed in a CPL article 440 motion ( see People v. Lohnes, 112 A.D.3d 1148, 1150, 976 N.Y.S.2d 719 [2013] ). Finally, considering defendant's significant criminal history, the leniency reflected in the plea deal ( seePenal Law §§ 70.06[6][a], [b]; 110.00; 130.50[1] ) and County Court's consideration of defendant's mental health evaluation, we do not find extraordinary circumstances or an abuse of discretion so as to warrant a reduction of the negotiated sentence in the interest of justice ( see People v. Feliciano, 108 A.D.3d 880, 882, 969 N.Y.S.2d 221 [2013],lv. denied22 N.Y.3d 1040, 981 N.Y.S.2d 374, 4 N.E.3d 386 [2013] ).
ORDERED that the judgment is affirmed. LAHTINEN, J.P., McCARTHY, LYNCH and DEVINE, JJ., concur.