| People v Carpenter |
| 2012 NY Slip Op 01697 [93 AD3d 950] |
| March 8, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Frederic C.Carpenter, Jr., Appellant. |
—[*1] Mark D. Suben, District Attorney, Cortland (Kevin A. Jones of counsel), forrespondent.
Lahtinen, J.P. Appeals (1) from a judgment of the County Court of Cortland County (Ames,J.), rendered September 6, 2000, convicting defendant upon his plea of guilty of the crime ofsexual abuse in the first degree, and (2) from a judgment of said court (Smith, J.), renderedSeptember 11, 2000, convicting defendant upon his plea of guilty of the crime of rape in thesecond degree.
While serving a sentence of five years of probation, defendant was charged in a 1998indictment with sexual abuse in the second degree, rape in the second degree and endangering thewelfare of a child. In 1999, he was charged in an indictment with unlawful imprisonment in thesecond degree, attempted sodomy in the first degree, sodomy in the first degree and sexual abusein the first degree. Thereafter, defendant's probation was revoked and he was resentenced to aprison term of 4 to 12 years. Approximately nine months later, defendant pleaded guilty to sexualabuse in the first degree in satisfaction of the 1999 indictment in return for a prison term of threeyears, to be followed by five years of postrelease supervision, with the sentence to runconcurrently with the sentence of 4 to 12 years imposed for his parole violation. Prior tosentencing, he moved to withdraw his plea. Subsequently, defendant pleaded guilty to rape in thesecond degree in satisfaction of the 1998 indictment agreeing to withdraw his motion towithdraw his plea relating to the 1999 indictment and accepting a prison term of 2 to 4 years torun concurrently with the other sentences. However, defendant again moved, pro se, to withdrawthis plea prior to sentencing. Before this motion to withdraw his plea was argued, he appeared[*2]before County Court (Ames, J.) to be sentenced on his plea tothe one count of the 1999 indictment.
At sentencing, defendant claimed that his motion to withdraw his plea in relation to the 1999indictment was revived by his motion to vacate his plea regarding the 1998 indictment where heagreed to withdraw his motion to withdraw his plea to the 1999 indictment as part of that pleabargain. County Court rejected defendant's argument and proceeded to sentence him inaccordance with the plea bargain. Five days later, County Court (Smith, J.) denied defendant'smotion to withdraw his plea related to the 1998 indictment and imposed the agreed-uponconcurrent prison term of 2 to 4 years. Defendant now appeals claiming that his guilty pleas werenot voluntary, his motions to withdraw his pleas should have been granted or at least he shouldhave been granted hearings, and he was denied the effective assistance of counsel.
With regard to the 1998 indictment, the record clearly reflects a voluntary, knowing andintelligent plea without any indication of coercion. In fact, defendant stated during the colloquythat he had not been threatened or coerced into entering his plea. Accordingly, we find that theplea was properly entered and that Count Court did not abuse its discretion in denying the motionto withdraw his plea without a hearing (see People v Waters, 80 AD3d 1002, 1003 [2011], lvdenied 16 NY3d 858 [2011], reconsideration denied 16 NY3d 864 [2011]; People v Johnson, 77 AD3d 986,986-987 [2010], lv denied 16 NY3d 743 [2011]). We also reject defendant's contentionthat he was denied the effective assistance of counsel. The fact that counsel did not join indefendant's motion to withdraw the plea does not constitute ineffective representation (see People v Murray, 25 AD3d911, 912 [2006], lv denied 6 NY3d 896 [2006]; People v Bolden, 289 AD2d607, 609-610 [2001], lv denied 98 NY2d 649 [2002]). Defendant's remaining claimsregarding ineffective assistance of counsel implicate matters outside the record and are moreproperly addressed in the context of a CPL article 440 motion (see People v Lopez, 74 AD3d1498, 1499 [2010]).
We reach a similar conclusion regarding defendant's claim that his plea related to the 1999indictment was not voluntarily entered. Although defendant moved to withdraw the plea, hesubsequently withdrew the motion as part of the plea agreement related to the 1998 indictmentand thereafter did not move to vacate the judgment of conviction. Accordingly, his claim isunpreserved for our review (see Peoplev Hodge, 85 AD3d 1680, 1680 [2011]; People v Terenzi, 57 AD3d 1228, 1229 [2008], lv denied12 NY3d 822 [2009]). Further, the narrow exception to the preservation rule is inapplicable here,inasmuch as defendant did not make any statements during the plea allocution that cast doubtupon his guilt or negated a material element of the crime (see People v Wicks, 83 AD3d 1223, 1224-1225 [2011], lvdenied 17 NY3d 810 [2011]). Defendant's contention that he was denied the effectiveassistance of counsel implicates the voluntariness of his plea and, in light of his failure to moveto vacate the judgment of conviction, is therefore similarly unpreserved for our review (see People v Cintron, 62 AD3d1157, 1158 [2009], lv denied 13 NY3d 742 [2009]). Further, the basis of hisclaim—that counsel did not adequately communicate with him and pressured him intopleading guilty—involves matters outside the record and is not properly the subject of adirect appeal (see People v Bolden,78 AD3d 1419, 1420 [2010], lv denied 16 NY3d 828 [2011]; People v Aubrey, 73 AD3d 1393,1394 [2010], lv denied 16 NY3d 893 [2011]).
Spain, Stein, Garry and Egan Jr., JJ., concur. Ordered that the judgments are affirmed.