| People v Rodriguez |
| 2009 NY Slip Op 00620 [59 AD3d 173] |
| February 5, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Rafael Rodriguez, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Mary C. Farrington of counsel), forrespondent.
Judgment, Supreme Court, New York County (Michael A. Corriero, J.), rendered November20, 2007, convicting defendant, upon his plea of guilty, of criminal sexual act in the first degree,and sentencing him to a term of 3 to 9 years, unanimously affirmed.
Defendant's challenge to the voluntariness of his plea is unpreserved (see People vLopez, 71 NY2d 662 [1988]), and we decline to review it in the interest of justice. As analternative holding, we also reject it on the merits. The plea was knowing, intelligent andvoluntary, and there was nothing in the allocution that cast doubt on defendant's guilt. Whiledefendant was initially reluctant to admit his guilt, he ultimately did so. The record alsoestablishes that the court sufficiently explained to defendant that the plea was conditioned on hissatisfactory completion of a treatment program, and that the consequence for noncompliancewith this requirement would be a sentence of 3 to 9 years. The record of the plea and subsequenthearing further supports the conclusion that defendant fully understood that the misconduct inwhich he engaged at the program constituted a violation of the plea conditions.
Defendant claims that his attorney rendered ineffective assistance by failing to move towithdraw the plea. However, that claim is unreviewable on direct appeal because it involvesmatters outside the record (see People v Rivera, 71 NY2d 705, 709 [1988]; People vLove, 57 NY2d 998 [1982]). Even in a case where a defendant has a legal basis upon whichto withdraw his or her plea, the defendant may still wish to let the plea stand in order to avoid therisks of going to trial on the original charges, and a competent attorney may provide soundadvice to let a plea stand notwithstanding an issue as to its validity. In this case, defendant facedthe danger of severe consecutive sentences had he withdrawn his plea and been convicted aftertrial on multiple counts. On the existing record, to the extent it permits review, we find thatdefendant received effective assistance under the state and federal standards (see People vFord, 86 NY2d [*2]397, 404 [1995]; see also Strickland vWashington, 466 US 668 [1984]).
We perceive no basis for reducing the sentence. Concur—Mazzarelli, J.P., Moskowitz,Renwick and Freedman, JJ.