| People v Watson |
| 2009 NY Slip Op 03059 [61 AD3d 1217] |
| April 23, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RomelleWatson, Appellant. |
—[*1] Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
Appeal from a judgment of the County Court of Columbia County (Nichols, J.), renderedSeptember 25, 2007, convicting defendant upon his plea of guilty of the crimes of attemptedassault in the first degree, criminal sale of a controlled substance in the third degree and criminalpossession of a controlled substance in the seventh degree.
Defendant pleaded guilty to a two-count indictment charging him with criminal sale of acontrolled substance in the third degree and criminal possession of a controlled substance in theseventh degree, as well as a superior court information charging him with attempted assault inthe first degree. Under the terms of the plea bargain, the prosecution and defense counsel agreedto a joint sentencing recommendation providing that defendant would be sentenced to anaggregate prison term of 10 years, to be followed by five years of postrelease supervision. Inaddition, defendant waived his right to appeal. County Court deviated from the joint sentencingrecommendation and sentenced defendant as a predicate felony offender to an aggregate prisonterm of 18 years, to be followed by five years of postrelease supervision. Defendant nowappeals.
Initially, we note that although defendant waived his right to appeal as part of the pleabargain, the People concede that the waiver included an exception that would permit review ofthe claims now advanced before us. Specifically, the written waiver provided, as relevant here,that defendant has "the right to appeal the sentence to be imposed should it be harsher than the[*2]sentence the District Attorney and I negotiated and jointlyrecommended." Inasmuch as defendant's arguments implicate only the exception to his waiver ofthe right to appeal, we address the substance of defendant's claims.
Preliminarily, we note that defendant's contention that he was denied the effective assistanceof counsel is unpreserved for our review given his failure to move to withdraw his plea or vacatethe judgment of conviction (see Peoplev Johnson, 54 AD3d 1133, 1134 [2008]; People v Farrington, 51 AD3d 1221, 1222 [2008], lvdenied 11 NY3d 736 [2008]). Nevertheless, even if we were to consider it, we would find itto be without merit. Defendant's claim that his attorney failed to adequately investigate hismental health history concerns matters outside the record and is more properly the subject of aCPL article 440 motion (see People vDobrouch, 59 AD3d 781, 781 [2009]; People v Sterling, 57 AD3d 1110, 1113 [2008]). Moreover, therecord belies defendant's assertion that his counsel failed to zealously advocate for imposition ofthe joint sentencing recommendation as it discloses that defense counsel made a cogent argumentto County Court, but that the court chose to impose a greater sentence due to defendant's failureto accept responsibility for his actions. Under these circumstances, we do not find that defendantwas denied meaningful representation (see People v Baldi, 54 NY2d 137, 147 [1981]).
Likewise, we find no merit to defendant's claim that his sentence is harsh and excessive.County Court was not bound to follow the joint sentencing recommendation (see People v Mills, 17 AD3d 712,713 [2005], lv denied 5 NY3d 766 [2005]), and the court made defendant aware of thisfact during the plea proceedings, also informing him of the maximum potential prison exposure.Notably, the presentence investigation report discloses that defendant has a lengthy criminalrecord and that he blamed the incident in which he tried to assault his wife on others' interferencein their relationship. Under these circumstances, we do not find that there exists either an abuseof discretion or extraordinary circumstances warranting a reduction of the sentence in the interestof justice (see People v Carter, 40AD3d 1211, 1213 [2007], lv denied 9 NY3d 864 [2007]; People v Sieber, 26 AD3d 535,536 [2006], lv denied 6 NY3d 853 [2006]).
Cardona, P.J., Mercure, Rose, Malone Jr. and Kavanagh, JJ., concur. Ordered that thejudgment is affirmed.