| People v White |
| 2013 NY Slip Op 02109 [104 AD3d 1056] |
| March 28, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vThomas White, Also Known as P, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), forrespondent.
Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered May 13, 2010, convicting defendant upon his plea of guilty of the crime ofassault in the first degree.
Defendant pleaded guilty to assault in the first degree in full satisfaction of anine-count indictment arising out of his role in the abduction and brutal beating of ayoung woman. In accordance with the plea agreement, defendant was sentenced as asecond felony offender to a prison term of 22 years followed by five years of postreleasesupervision. Defendant now appeals.
Upon review of the record before us, we find that defendant did not effect a validwaiver of his right to appeal (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Lewis, 39 AD3d1025, 1025 [2007]). Nonetheless, defendant's arguments regarding the voluntarinessof his plea and the ineffective assistance of his trial counsel have not been properlypreserved for our review by a motion to withdraw his plea (see People v Lopez, 52 AD3d852, 853 [2008]; People vMcEnteggart, 26 AD3d 643, 643 [2006], lv denied 7 NY3d 759[2006]). Additionally, the exception to the preservation rule is not applicable asdefendant made no statements during his plea that were inconsistent with his guilt(see People v Lopez, 71 NY2d 662, 666 [1988]). While defendant contends inhis pro se brief that he also made a CPL 440.10 motion, that motion is not before us onthis appeal.[*2]
In any event, the plea minutes reflect thatdefendant's plea was knowing, voluntary and intelligent and that he was affordedmeaningful representation (seePeople v Getter, 52 AD3d 1117, 1117-1118 [2008]; People v White, 47 AD3d1062, 1063 [2008]; Peoplev Edwards, 43 AD3d 1227, 1228 [2007], lv denied 9 NY3d 1005[2007]). Defendant was advised of the rights he forfeited by pleading guilty, stated thathe understood those rights and that he had adequate time to consult with his attorney andadmitted committing the assault as charged in the indictment. Additionally, defendantconfirmed that he was satisfied with counsel's representation. Indeed, counsel was able tosecure a very favorable plea agreement considering the number and severity of the crimescharged.
While defendant's guilty plea did not waive his current claim regarding AlbanyCounty's geographic jurisdiction over this assault (see People v Kellerman, 102AD2d 629, 630 [1984]),[FN*]defendant's claim lacks merit. During the plea colloquy, defendant admitted that, ascharged in count five of the indictment, he abducted the victim in Albany County andcaused serious physical injury to her in furtherance of a felony, i.e., a kidnapping, inviolation of Penal Law § 120.10 (4). As one or more elements of this crimeoccurred in Albany County, it was a proper venue for the prosecution of this crime(see CPL 20.40 [1]; People v Singh, 30 AD3d 639, 639 [2006]). Thus, counselcannot be deemed ineffective for failing to move to dismiss this count of the indictmenton this ground.
Finally, despite defendant's age and difficult upbringing, we are not persuaded thatthe negotiated sentence was harsh or excessive given the brutal and senseless nature ofthe crime (see People vEggsware, 89 AD3d 1277, 1277 [2011]; People v Means, 35 AD3d 975, 976-977 [2006], lvdenied 8 NY3d 948 [2007]). We have considered defendant's remaining contentionsand find them to be without merit.
Mercure, J.P., Rose, Stein and Spain, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Notably, venue issuesare waivable (see People v Greenberg, 89 NY2d 553, 556 [1997]; People vMcLaughlin, 80 NY2d 466, 471 [1992]; People v Lowen, 100 AD2d 518,519 [1984]).