| People v Lee |
| 2008 NY Slip Op 04398 [51 AD3d 1217] |
| May 15, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Thomas Lee,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered February 14, 2006, convicting defendant upon his plea of guilty of the crime of burglaryin the second degree.
Defendant and another individual allegedly entered a residence in the City of Albany and,armed with a gun, physically assaulted the occupant in an effort to steal money. Defendant wasindicted on six felony counts, and thereafter entered into a negotiated deal in which he pleadedguilty to burglary in the second degree (reduced from a charged count of burglary in the firstdegree) in full satisfaction of all charges. Consistent with the terms of the deal, he received asentence of eight years in prison with three years of postrelease supervision. Defendant nowappeals.
There is merit to defendant's initial contention that his purported waiver of his right to appealwas invalid. The People do not contest this point and review of the plea colloquy reveals thatCounty Court did not "adequately distinguish that waiver from those rights that are automaticallyforfeited upon a plea of guilty" (Peoplev Guthinger, 36 AD3d 1075, 1076 [2007], lv denied 8 NY3d 923 [2007]; see People v Lopez, 6 NY3d 248,256 [2006]). Accordingly, defendant's argument that he did not receive the effective assistance ofcounsel is not limited to the voluntariness of his plea (see People v White, 47 AD3d 1062, 1063 [2008], lv denied10 [*2]NY3d 818 [2008]; cf. People v Morgan, 39 AD3d 889, 890 [2007], lv denied 9NY3d 848 [2007]), and his challenge to the severity of his sentence is properly before us forreview (see People v Guthinger, 36 AD3d at 1076; see also People v White, 47AD3d at 1063). Nonetheless, we find defendant's arguments on such issues unavailing.
"In the context of a guilty plea, a defendant has been afforded meaningful representationwhen he or she receives an advantageous plea and nothing in the record casts doubt on theapparent effectiveness of counsel" (People v Ford, 86 NY2d 397, 404 [1995] [citationsomitted]; see People v Cain, 29AD3d 1032, 1033 [2006], lv denied 7 NY3d 786 [2006]; People v Frierson, 21 AD3d 1211,1212 [2005], lv denied 6 NY3d 753 [2005]). Defendant was charged with six felonycounts and his counsel procured an advantageous plea in which he pleaded guilty to a single,reduced charge. A further term of the deal provided that defendant, who had four prior felonyconvictions, would be treated as a second felony offender rather than a persistent felony offender.The agreed upon sentence was well below his maximum exposure. Defendant indicated at thetime of his plea that he was satisfied with the representation he had received. His currentargument that further motions should have been pursued before accepting a plea fails to establishthat he did not receive the effective assistance of counsel (see People v Socrates, 307AD2d 546, 547 [2003]).
The negotiated sentence that defendant received was less than the permissible maximum and,in light of defendant's criminal history and the violent nature of the current offense, we findneither an abuse of discretion by County Court nor extraordinary circumstances justifying amodification of that sentence (seePeople v Masters, 36 AD3d 959, 960-961 [2007], lv denied 8 NY3d 925 [2007];People v Gray, 32 AD3d 1052,1053 [2006], lv denied 7 NY3d 902 [2006]).
Peters, J.P., Spain, Rose and Kavanagh, JJ., concur. Ordered that the judgment is affirmed.