| People v Macduff |
| 2011 NY Slip Op 03143 [83 AD3d 1292] |
| April 21, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jennifer L.Macduff, Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Clinton County (McGill, J.),rendered January 6, 2010, convicting defendant upon her plea of guilty of the crimes of robberyin the second degree, criminal possession of a weapon in the fourth degree, petit larceny andcriminal possession of stolen property in the fifth degree.
Defendant waived indictment and agreed to be prosecuted by a superior court informationcharging her with robbery in the second degree, criminal possession of a weapon in the fourthdegree, petit larceny and criminal possession of stolen property in the fifth degree. Defendantpleaded guilty to these charges and, as pertinent here, received concurrent sentences resulting inan aggregate prison term of six years[FN*]to be followed by two years of postrelease [*2]supervision.Defendant now appeals.
Defendant's claim that her plea was rendered involuntary by the ineffective assistance ofcounsel is unpreserved for our review in light of her failure to move to withdraw her plea orvacate the judgment of conviction (seePeople v Miller, 70 AD3d 1120, 1121 [2010], lv denied 14 NY3d 890 [2010];People v Jenks, 69 AD3d 1120,1121 [2010], lv denied 14 NY3d 841 [2010]). In any event, our review of the recordreveals that defendant was the beneficiary of a favorable plea deal and we perceive nothing in therecord that casts doubt on counsel's provision of meaningful representation (see People vFord, 86 NY2d 397, 404 [1995]; People v Heier, 73 AD3d 1392, 1393 [2010], lv denied 15NY3d 805 [2010]).
Defendant's claim that her sentence was harsh and excessive is unpersuasive. The recordshows that the plea agreement did not include a commitment by County Court with respect tosentencing, and defendant's aggregate sentence of six years in prison is significantly less than themaximum term to which she was exposed (see Penal Law § 70.02). In our view,the record does not demonstrate any extraordinary circumstances or an abuse of discretion byCounty Court warranting a reduction of defendant's sentence in the interest of justice (see People v Velazquez, 67 AD3d1124, 1124 [2009], lv denied 14 NY3d 894 [2010]).
Mercure, J.P., Rose, Malone Jr. and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Although defendant contends onappeal that she was sentenced to a term of imprisonment of 8½ years, apparently under thebelief that the sentences imposed were to run consecutively, we conclude otherwise. The recordreveals that County Court did not specify whether the sentences imposed were to runconcurrently or consecutively. However, inasmuch as "more than one sentence of imprisonment[was] imposed on [defendant] for two or more offenses committed through a single act oromission, or through an act or omission which in itself constituted one of the offenses and alsowas a material element of the other," defendant's sentences must run concurrently (Penal Law§ 70.25 [2]).