| People v Smith |
| 2008 NY Slip Op 10072 [57 AD3d 1237] |
| December 24, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Eric S. Smith,Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Chantelle Schember of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Clinton County (Ryan, J.), renderedJanuary 30, 2008, convicting defendant upon his plea of guilty of eight counts of the crime of burglary inthe second degree.
In July 2007, defendant was indicted on eight counts of burglary in the second degree and eightcounts of petit larceny after he unlawfully entered several residences and took jewelry, cash and cellphones. He pleaded guilty to eight counts of burglary in the second degree in full satisfaction of theindictment. Pursuant to the plea agreement, County Court sentenced defendant as a second felonyoffender to eight concurrent prison terms of eight years, with five years of postrelease supervision.Defendant now appeals.
We affirm. Defendant's contentions that his guilty plea was not voluntary and was factuallyinsufficient and that he was denied the effective assistance of counsel are unpreserved for our review ashe failed to move to withdraw the plea or vacate the judgment of conviction (see People v Lopez, 52 AD3d 852,852-853 [2008]; People v Edwards, 43AD3d 1227, 1228 [2007], lv denied 9 NY3d 1005 [2007]; People v Myricks, 36 AD3d 1006,1006 [2007], lv denied 8 NY3d 948 [2007]). Moreover, no exception to the preservation ruleis applicable to the challenge to the voluntariness of the plea as defendant made no statements that wereinconsistent with his guilt (see People v Lopez, 52 AD3d at 853; People v Ramirez, 42 AD3d 671,672[*2][2007]).
In any event, defendant's claims are without merit. Inasmuch as County Court fully appriseddefendant of the ramifications of his guilty plea during the plea colloquy and defendant bothcommunicated that he understood the ramifications and allocuted to eight counts of the crime ofburglary in the second degree, we find that he entered his plea knowingly, intelligently and voluntarily(see People v Perry, 50 AD3d1244, 1245 [2008], lv denied 10 NY3d 963 [2008]; People v Olivieris, 40 AD3d 1313, 1314 [2007]). Furthermore,contrary to defendant's suggestion, it was not necessary that he "personally recite the facts underlying[his] crimes" (People v Harris, 51 AD3d1335, 1336 [2008], lv denied 11 NY3d 789 [2008]).
As to defendant's claim that he was denied the effective assistance of counsel, none of his specificclaims of inadequacies is supported by the record. Insofar as defendant received a favorable pleabargain and stated during the colloquy that he had ample opportunity to consult with counsel concerninghis plea and that he was satisfied with counsel's representation, we find that defendant was afforded theeffective assistance of counsel (see People v Myricks, 36 AD3d at 1007; People v Graham, 35 AD3d 1039,1040 [2006], lv denied 8 NY3d 922 [2007]; People v Miller, 17 AD3d 931, 932 [2005], lvs denied 5 NY3d854 [2005], 6 NY3d 756 [2005]). Moreover, defendant's contention that counsel failed to properlyinvestigate his case, including interviewing witnesses, concerns matters outside the record and are moreappropriately the subject of a CPL article 440 motion (see People v Douglas, 38 AD3d 1063, 1064 [2007], lv denied9 NY3d 843 [2007]).
Finally, we have considered defendant's contention that his sentence was harsh and excessive andfind it to be unavailing. Nothing in the record convinces us that County Court abused its discretion norare there any extraordinary circumstances warranting a reduction of the negotiated sentence (seePeople v Edwards, 43 AD3d at 1228).
In view of the foregoing, defendant's remaining argument is academic.
Mercure, J.P., Spain, Carpinello and Malone Jr., JJ., concur. Ordered that the judgment isaffirmed.