| People v Gorrell |
| 2009 NY Slip Op 05036 [63 AD3d 1381] |
| June 18, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Birchard K.Gorrell, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Torrance L. Schmitz of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Broome County (Cawley, Jr., J),rendered August 20, 2008, convicting defendant upon his plea of guilty of two counts of thecrime of robbery in the second degree.
Defendant was indicted on two counts of robbery in the second degree for allegedlyaccosting a clerk in a hotel, stealing cash and the victim's vehicle. Defendant ultimately pleadedguilty to both counts of the indictment and was sentenced in accordance with a plea agreement totwo six-year terms of imprisonment, to run concurrently, and five years of postreleasesupervision. Defendant now appeals and we affirm.
Defendant's contentions that his plea was not voluntarily or knowingly entered and that hewas denied the effective assistance of counsel are not preserved for our review given his failureto move to withdraw his plea or vacate the judgment of conviction (see People v Creech, 56 AD3d899, 900 [2008]; People vSorey, 55 AD3d 1063, 1064 [2008], lv denied 11 NY3d 930 [2009]; People v Johnson, 54 AD3d 1133,1134 [2008]; People v Barclay, 1AD3d 705, 705 [2003], lv denied 1 NY3d 567 [2003]). With regard to the plea, "thenarrow exception to the preservation rule is inapplicable inasmuch as defendant did not makeany statements during his plea allocution which negated an essential element of the crime orotherwise cast significant [*2]doubt on his guilt" (People v Wright, 40 AD3d 1314,1314 [2007]).
Even if defendant's arguments were preserved, they are without merit. Defendant's claim thatcounsel pressured him into pleading guilty to the entire indictment pertains to matters outside therecord and is more properly the subject of a CPL article 440 motion (see People v Cruz, 53 AD3d 986[2008]). Nor does the record indicate that defendant's attorney otherwise provided less thanmeaningful representation (see People vCaban, 5 NY3d 143, 152 [2005]; People v Hutchinson, 57 AD3d 1013, 1014 [2008]; People v Madison, 31 AD3d 974,975 [2006], lv denied 7 NY3d 868 [2006]).
Defendant's contention that the sentence was harsh and excessive is also unavailing. Therecord reflects that defendant physically assaulted a 65-year-old woman at her place ofemployment, forceably taking money and her vehicle in the process. Neither defendant'spurported alcohol use nor his expressions of remorse at sentencing qualify as extraordinarycircumstances warranting reduction of his sentence (see People v Elliot, 57 AD3d 1095, 1097-1098 [2008], lvdenied 12 NY3d 783 [2009]; People v Ryan, 278 AD2d 524 [2000], lvdenied 96 NY2d 763 [2001]; People v Hearn, 248 AD2d 889, 890-891 [1998]).Accordingly, we find that County Court's sentence of six years, which was substantially less thanthe maximum prison term that defendant could have received (see Penal Law §70.02 [3] [b]), was not an abuse of discretion and, in the absence of extraordinary circumstanceswarranting its reduction, we decline to disturb it (see People v Sims, 57 AD3d 1106, 1109 [2008], lv denied12 NY3d 762 [2009]).
Spain, J.P., Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that the judgment isaffirmed.