| People v Boyde |
| 2010 NY Slip Op 02236 [71 AD3d 1442] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Thomas W.Boyde, IV, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D. Valentino, J.),rendered January 8, 2008. The judgment convicted defendant, upon his plea of guilty, ofinsurance fraud in the third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty oftwo counts of insurance fraud in the third degree (Penal Law § 176.20). Defendantcontends that his plea was coerced because Supreme Court threatened to impose a greatersentence in the event of a conviction following a trial. We reject that contention. Although it iswell settled that "[a] defendant may not be induced to plead guilty by the threat of a heaviersentence if he [or she] decides to proceed to trial" (People v Christian [appeal No. 2],139 AD2d 896, 897 [1988], lv denied 71 NY2d 1024 [1988]), the statements of the courtat issue, made during a pre-plea proceeding, "amount to a description of the range of thepotential sentences" rather than impermissible coercion (People v Flinn, 60 AD3d 1304, 1305 [2009]). "The fact thatdefendant may have pleaded guilty to avoid receiving a harsher sentence does not render his pleacoerced" (People v Villone, 302 AD2d 866 [2003], lv denied 4 NY3d 768[2005]).
Even assuming, arguendo, that defendant preserved for our review his challenge to thefactual sufficiency of the plea allocution (see People v Lopez, 71 NY2d 662, 665[1988]), we conclude that it is without merit. Defendant further contends that he wasdenied effective assistance of counsel. "[T]o the extent that defendant's contention is based ondefense counsel's alleged failure to investigate certain facts of the case, it 'is unreviewable ondirect appeal [because] it involves matters outside the record' " (People v Washington, 39 AD3d1228, 1230 [2007], lv denied 9 NY3d 870 [2007]; see People v Sharpe, 295AD2d 957, 958 [2002]). Further, to the extent that defendant's contention with respect to theremaining alleged errors of defense counsel is not forfeited by the plea (see People v Santos, 37 AD3d1141 [2007], lv denied 8 NY3d 950 [2007]), it is lacking in merit. The recordestablishes that defendant received an advantageous plea agreement and nothing in the recordsuggests that defense counsel's representation was anything less than meaningful (see People v Balanean, 55 AD3d1353 [2008], lv denied 11 NY3d 895 [2008]; see generally People v Ford,86 NY2d 397, 404 [1995]). Present—Scudder, P.J., Peradotto, Carni, Green and Gorski,JJ.