| People v Cogswell |
| 2012 NY Slip Op 02724 [94 AD3d 1236] |
| April 12, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v KeithCogswell, Appellant. |
—[*1] D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the County Court of Ulster County (Czajka, J.),rendered October 1, 2010, which revoked defendant's probation and imposed a sentence ofimprisonment.
In November 2005, defendant pleaded guilty to sexual abuse in the first degree in satisfactionof a four-count indictment and was thereafter sentenced to a 10-year term of probation, the first180 days of which were to be spent in jail. His conviction and sentence were affirmed on appealto this Court (People v Cogswell, 46AD3d 1017 [2007]). In August 2008, a declaration of delinquency was filed after defendantfailed to attend substance abuse treatment and admitted to using cocaine on multiple occasions.As a result, his probation was continued with the modification that he comply with mental healthtreatment. Subsequently, a second declaration of delinquency was filed against defendant in July2010 after he failed to report for probation on several occasions and admitted to again repeatedlyusing cocaine and drinking alcohol. Defendant pleaded guilty to violating his probation, andCounty Court sentenced him to five years in prison, to be followed by three years of postreleasesupervision. Defendant now appeals.
We affirm. The record before us does not contradict the People's assertion that defendantfailed to move to withdraw his plea or vacate the judgment of conviction and, therefore, his claimthat his guilty plea to the probation violations was not knowingly, [*2]intelligently and voluntarily entered is unpreserved for this Court'sreview (see People v Miller, 90AD3d 1416, 1416-1417 [2011]; People v Lewis, 69 AD3d 1232, 1234 [2010]). Moreover, therecord demonstrates that defendant stated upon questioning by County Court that he had fullydiscussed the matter with his attorney, was satisfied with his representation and had not beenpromised anything in exchange for his plea. In addition, the court advised defendant that, bypleading guilty, he could face a prison term of up to seven years with up to three years ofpostrelease supervision, and defendant acknowledged that he was pleading guilty with a fullunderstanding of the consequences. Inasmuch as there is nothing in the record to indicate that theguilty plea was not knowing, intelligent and voluntary, the exception to the preservation rule isinapplicable (see People v Lewis, 69 AD3d at 1234).
Defendant's contention that he was denied the effective assistance of counsel is alsounpreserved by virtue of his claimed failure to move to withdraw his plea or vacate the judgmentof conviction (see People vCampbell, 89 AD3d 1279, 1279 [2011]; People v Lewis, 69 AD3d at 1234).Reversal in the interest of justice is unwarranted; our review demonstrates that defendantindicated on the record that he was satisfied with his representation. Furthermore, counsel, whohad represented defendant on his previous violation petition, argued vigorously for leniency inlight of defendant's addiction problems, and defendant received a sentence less than themaximum. Finally, we reject the claim that the sentence imposed was harsh or excessive anddiscern no extraordinary circumstances that would warrant a reduction (see People vMiller, 90 AD3d at 1417; People vCerone, 75 AD3d 835, 836 [2010], lv denied 15 NY3d 850 [2010]). Defendant'sremaining argument is not properly before us.
Lahtinen, Spain, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed.