| People v Miller |
| 2010 NY Slip Op 01020 [70 AD3d 1120] |
| February 11, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ChristopherMiller, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Damian M. Sonsire of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.),rendered December 7, 2007, convicting defendant upon his plea of guilty of the crime ofattempted burglary in the second degree.
Defendant was charged in an indictment with burglary in the second degree and grandlarceny in the fourth degree as the result of an incident in May 2007 when he and another personentered a residence and stole property from the home's owner. Despite initial confusionregarding the People's plea offer, defendant ultimately pleaded guilty to attempted burglary inthe second degree and was sentenced, in accordance with the negotiated plea agreement, to threeyears in prison followed by three years of postrelease supervision. He now appeals and weaffirm.
Defendant failed to preserve his challenge to the voluntariness of his plea by his failure tomove to withdraw the plea or vacate the judgment of conviction (see People v Dixon, 66 AD3d1237, 1237 [2009]). Moreover, after defendant expressed concern—at a hearing heldone month following the plea—over having pleaded guilty to a violent felony, CountyCourt adjourned the proceedings for two weeks to provide defendant an opportunity to discussthe matter with his attorney. When the parties reconvened, defendant informed County Court thathe had fully discussed his concerns with counsel and that he wished to proceed under the termsof [*2]the plea agreement. Under such circumstances, weconclude that the issue is not preserved (see People v Watson, 62 AD3d 1032, 1033-1034 [2009]). In anyevent, defendant's contention is unavailing. The plea minutes reveal "that defendant was apprisedof his rights, evidenced an understanding thereof, denied that he had been threatened or coerced,stated that he had sufficient time to confer with counsel and indicated that he wished to pleadguilty" (People v Smith, 56 AD3d894, 895 [2008], lv denied 12 NY3d 788 [2009]). Contrary to defendant'ssuggestion, County Court had no obligation to explore all possible defenses that might be waivedby his plea where his assertions during the colloquy failed to reveal that he was entitled to anyspecific defense (see People vWagoner, 30 AD3d 629, 629-630 [2006]). Accordingly, we would find defendant's pleato be knowing, intelligent and voluntary.
Defendant's assertion that he was denied the effective assistance of counsel is similarlyunpreserved by his failure to move to withdraw the plea or vacate the judgment of conviction (see People v Lopez, 52 AD3d852, 853 [2008]). Were we to review the claim, we would nonetheless find it to be withoutmerit. Indeed, the record reflects that counsel negotiated an advantageous plea agreement andthat, upon our examination of the totality of the circumstances, defendant was provided withmeaningful representation (see People vBuskey, 62 AD3d 1164, 1165 [2009]; People v Riddick, 40 AD3d 1259, 1261 [2007], lv denied 9NY3d 925 [2007]). Finally, we are unpersuaded by defendant's contention that the agreed uponthree-year prison sentence is harsh and excessive and discern neither the existence ofextraordinary circumstances nor an abuse of discretion warranting its reduction in the interest ofjustice (see People v Strauss, 16AD3d 707, 708 [2005]).
Mercure, J.P., Rose, Lahtinen and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.