| People v Miller |
| 2009 NY Slip Op 07698 [66 AD3d 1242] |
| October 29, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Patrick S.Miller, Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Chantelle Schember of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Clinton County (Lawliss, J.),rendered October 2, 2006, convicting defendant upon his plea of guilty of the crimes of assault inthe second degree, criminal possession of a weapon in the third degree (two counts), menacing inthe second degree and unlawful imprisonment in the second degree.
Defendant was charged with assaulting his ex-wife, threatening her with a weapon,menacing and unlawful imprisonment. After waiving indictment and agreeing to beingprosecuted by superior court information, defendant, on the day his trial was to commence,pleaded guilty to all of the charges contained in the information in exchange for a commitmentby County Court that any prison terms imposed as his sentence would run concurrently witheach other. County Court subsequently sentenced defendant as a second felony offender to anaggregate prison term of six years, followed by five years of postrelease supervision.[FN1]Defendant [*2]now appeals.
Initially, we note that defendant has not moved to withdraw his plea or vacate his judgmentof conviction and, as a result, any claim that his guilty plea was involuntarily entered or that hewas denied the effective assistance of counsel has not been preserved for our review (see People v Dantzler, 63 AD3d1376 [2009]; People v Dixon,62 AD3d 1214 [2009], lv denied 13 NY3d 743 [2009]; People v Cintron, 62 AD3d 1157,1158 [2009], lv denied 13 NY3d 742 [2009]; People v Dobrouch, 59 AD3d 781, 781 [2009], lv denied12 NY3d 853 [2009]). In addition, defendant, during his plea allocution, did not make anystatements or take any action that called into question either his guilt or the voluntariness of hisplea (see People v Gilmour, 61AD3d 1122, 1123 [2009], lv denied 12 NY3d 925 [2009]; People v Jeske, 55 AD3d 1057,1058 [2008], lv denied 11 NY3d 898 [2008]). While he claims that he did not receiveeffective assistance from his counsel, the allegations involve matters that, for the most part, falloutside the record. Equally important, this contention is at odds with statements made bydefendant during his plea allocution to the effect that he had sufficient time to confer withcounsel and was satisfied with counsel's efforts on his behalf (see People v Dixon, 62AD3d at 1214; People v Dobrouch, 59 AD3d at 782).
Finally, defendant's sentence was not harsh or excessive.[FN2]By his plea, he stands convicted of striking his ex-wife in the face with a chukka stick, holding aswitchblade to her neck and confining her to a bathroom for a substantial period oftime—all actions that justifiably placed her in fear that she would be harmed and seriouslyinjured. County Court, when imposing sentence, observed that defendant not only appearedunwilling to accept full responsibility for his actions, but did not exhibit any sign that heregretted what had occurred with his ex-wife. In addition, defendant was convicted of a felonyonly one month prior to this attack and he had just begun to serve a period of probation as hissentence for that offense. Accordingly, County Court did not abuse its discretion and noextraordinary circumstances exist justifying a modification of the sentence (see People v Lee, 51 AD3d 1217,1218 [2008]).
Mercure, J.P., Spain, Malone Jr. and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: County Court initially imposeda three-year period of postrelease supervision, however, in November 2006, the courtreconvened and resentenced defendant to five years of postrelease supervision as required byPenal Law § 70.45 (2).
Footnote 2: While defendant challenges theintegrity of his decision to waive his right to appeal, there is no indication in the record that sucha waiver ever occurred before County Court. Therefore, defendant is not precluded from raisingthis issue.