| People v Bethel |
| 2010 NY Slip Op 00412 [69 AD3d 1126] |
| January 21, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Ronald A.Bethel, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Torrance L. Schmitz of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Broome County (Cawley, J.),rendered October 23, 2008, convicting defendant upon his plea of guilty of the crime ofattempted murder in the second degree.
In June 2008, defendant was forcibly removed from a bar in the Village of Endicott, BroomeCounty after he got into an argument with the victim, an employee of the bar, about paying acover charge and struck the victim in the back of the head with a beer bottle. Defendant returnedto the premises shortly thereafter armed with a loaded .45 caliber handgun and, upon confrontingthe victim in a crowded parking lot, fired six shots from the weapon, striking the victim once.Defendant was subsequently arrested and, while represented by counsel, agreed to waiveindictment and be prosecuted by a superior court information charging him with attemptedmurder in the second degree and criminal use of a firearm in the first degree. At the same time,he entered a plea of guilty to attempted murder in the second degree in exchange for acommitment by County Court that the sentence to be imposed would not exceed 12 years inprison, plus five years of postrelease supervision.[FN*]Defendant was sentenced in accordance with that agreement and now appeals, claiming that hisguilty plea was, under the facts presented, involuntarily rendered and he was deprived of theeffective assistance of counsel.
Initially, we note that defendant's failure to move to withdraw his guilty plea or to vacate thejudgment of conviction renders his claims that his plea was involuntarily entered and his pleaallocution was factually inadequate unpreserved for our review (see People v Lopez, 71NY2d 662, 665 [1988]; People vMason, 66 AD3d 1225, 1227 [2009]; People v Campbell, 66 AD3d 1059, 1059 [2009]; People v Parsons, 65 AD3d 716[2009], lv denied 13 NY3d 838 [2009]; People v Dantzler, 63 AD3d 1376, 1377 [2009]; People v Brennan, 62 AD3d 1167,1168 [2009], lv denied 13 NY3d 794 [2009]; People v Talmadge, 48 AD3d 836, 836 [2008]). Moreover, thenarrow exception to the rule requiring preservation does not apply here as defendant did notmake any statements during his plea allocution that cast doubt upon his guilt or the voluntarinessof his plea (see People v Mason, 66 AD3d at 1227; People v Brennan, 62 AD3dat 1168). If we were to conduct such a review, the record establishes that defendant's affirmativeresponses to County Court's questions posed during the plea allocution established not only thathis guilty plea was entered after he had conferred with counsel, but also contained an admissionby defendant that "on or about the 14th day of June, 2008, with the intent to cause the death ofanother person [he] did attempt to cause the death of [the victim] by shooting [him] with a bulletdischarged from a loaded firearm" (see People v Campbell, 66 AD3d at 1060; People v Harris, 51 AD3d 1335,1336 [2008], lv denied 11 NY3d 789 [2008]). As such, defendant's claims as they relateto the voluntariness of his guilty plea or the factual adequacy of his plea allocution are, in ourview, without merit.
Defendant also claims the he was denied the effective assistance of counsel because hiscounsel failed to retain an expert witness to testify that defendant was intoxicated at the time ofthe incident and, therefore, could not have formed the specific intent required to establish that hecommitted the crime of attempted murder. By entering a guilty plea, defendant gave up his rightto a trial and his right to offer any defenses to the charges contained in the superior courtinformation. Moreover, this claim is not only unpreserved due to defendant's failure to move tovacate his judgment of conviction (seePeople v Dobrouch, 59 AD3d 781, 781 [2009], lv denied 12 NY3d 853 [2009]),but defendant made no statements during his plea allocution or sentencing that suggested theexistence of such a defense. As for his contention that counsel's failure to provide him withmeaningful representation affected his decision to plead guilty, his claim in that regard involvesmatters that fall outside the record and should have been the subject of a CPL article 440 motion(see People v Smith, 57 AD3d1237, 1238 [2008]).
Spain, J.P., Rose, Malone Jr. and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: It was also stipulated as part ofthe plea that defendant would plead guilty to criminal use of a firearm in the first degree and aless severe sentence would be imposed if County Court concluded, upon its review of thepresentence investigation report, that such action was appropriate. After conducting such areview, County Court declined to exercise such discretion and refused to impose a lessersentence.