| People v Buskey |
| 2009 NY Slip Op 03965 [62 AD3d 1164] |
| May 21, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v John E.Buskey, Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Chantelle Schember of counsel), forrespondent.
Spain, J. Appeal from a judgment of the Supreme Court (Lawliss, J.), rendered May 19, 2008in Clinton County, convicting defendant upon his plea of guilty of the crime of endangering thewelfare of a child.
As a result of allegations by a 15-year-old girl that defendant had sexual contact with her inOctober 2007, defendant was charged with third degree sexual abuse and endangering thewelfare of a child. Defendant thereafter pleaded guilty to endangering the welfare of achild[FN*]and was sentenced to a 60-day jail term and three years of probation. Defendant now appeals,and we [*2]affirm.
Defendant's challenge to his plea as involuntary is unpreserved, given that he never moved towithdraw it or to vacate the judgment of conviction (see People v Creech, 56 AD3d 899, 900 [2008]), and a review ofthe plea proceedings reveals that the narrow exception to the preservation requirement isinapplicable here (see People v Lopez, 71 NY2d 662, 666 [1988]). In any event, therecord of the plea colloquy discloses that defendant was advised of the rights he was foregoingby the plea and the consequences thereof, of his sentencing exposure and that County Courtmade no sentencing promise, that he had discussed his plea with his attorney, and had not beencoerced or promised anything; defendant admitted that he had in fact purposefully had sexualcontact with the minor's vaginal area as alleged (see People v Kennedy, 46 AD3d 1099, 1100 [2007], lvdenied 10 NY3d 841 [2008]). No further factual or crime element recitation were necessary(see People v Seeber, 4 NY3d780, 781 [2005]), and his assertion that he felt pressured into entering a plea amounts to "'situational coercion,' " which is unavailing (People v Simmons, 27 AD3d 786, 786 [2006], lv denied 7NY3d 763 [2006], quoting People v Seaberg, 74 NY2d 1, 8 [1989]).
Most of defendant's claims of being denied the effective assistance of trial counsel, forexample, by counsel's failure to discuss his options or possible defenses, were not raised beforeCounty Court and are outside the record and, as such, should more properly be the subject of aCPL article 440 motion (see People vAnthony, 52 AD3d 864, 866 [2008], lv denied 11 NY3d 733 [2008]; People v Swartz, 23 AD3d 917,918 [2005], lv denied 6 NY3d 818 [2006]). The record otherwise reflects that counselnegotiated a favorable plea agreement and that, under the totality of the circumstances, defendantreceived meaningful representation (seePeople v Anderson, 38 AD3d 1061, 1062-1063 [2007], lv denied 8 NY3d 981[2007]). Indeed, during the plea colloquy, defendant expressed satisfaction with counsel'srepresentation and with his opportunity to discuss the matter with counsel, who had answered allof his questions (see People vTerry, 55 AD3d 1149, 1150 [2008], lv denied 11 NY3d 931 [2009]).
Finally, defendant has already served his jail sentence, rendering his harsh and excessiveclaim moot to that extent (see People v La Motte, 285 AD2d 814, 817 [2001]).Defendant's remaining claims are also unpersuasive.
Cardona, P.J., Mercure, Lahtinen and Malone Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: The People's brief on appealincorrectly states that defendant also entered a guilty plea to sexual abuse in the third degree.Defendant's brief similarly misstates that defendant waived his appeal rights, which we note wasnever discussed on this record, and that defendant faced a potential eight-year prison sentencefor "taking[ ] nominal amounts of property," assertions which have no relationship whatsoever todefendant's case.