| People v Culver |
| 2012 NY Slip Op 02988 [94 AD3d 1427] |
| April 20, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Thomas A.Culver, Jr., Appellant. |
—[*1] Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered July6, 2010. The judgment convicted defendant, upon his plea of guilty, of grand larceny in thefourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of grandlarceny in the fourth degree (Penal Law § 155.30 [1]), defendant contends that he wasdenied effective assistance of counsel. We reject that contention. Defendant's contention "'survives his guilty plea only to the extent that defendant contends that his plea was infected bythe alleged ineffective assistance' " (People v Garner, 86 AD3d 955, 956 [2011]; see People v Gleen, 73 AD3d1443, 1444 [2010], lv denied 15 NY3d 773 [2010]). "In the context of a guilty plea,a defendant has been afforded meaningful representation when he or she receives anadvantageous plea and nothing in the record casts doubt on the apparent effectiveness of[defense] counsel" (People v Ford, 86 NY2d 397, 404 [1995]), and upon our review ofthe record we conclude that defendant was afforded such meaningful representation here. " 'Tothe extent that defendant contends that defense counsel was ineffective because he coerceddefendant into pleading guilty, that contention is belied by defendant's statement during the pleacolloquy that the plea was not the result of any [force] or coercion' " (Garner, 86 AD3d at956), and by his statement "that he was satisfied with the representation of defense counsel" (People v Strasser, 83 AD3d 1411,1411 [2011]). Under the circumstances of this case, we reject defendant's contention that defensecounsel was ineffective when defense counsel allegedly induced defendant to plead guilty bymisinforming him of his sentence exposure (see generally Ford, 86 NY2d at 404).Misinformation as to the possible sentence to which a defendant is exposed "is [a] factor whichmust be considered by the court [in determining whether a plea was knowing, intelligent andvoluntary and thus whether the plea was infected by the misinformation, rendering defensecounsel ineffective], but it is not, in and of itself, dispositive" (People v Garcia, 92 NY2d869, 870 [1998]; see People vMorrison, 78 AD3d 1615, 1616 [2010], lv denied 16 NY3d 834 [2011]). Indeed,"[w]hether a plea was knowing, intelligent and voluntary is dependent upon a number offactors[,] including the nature and terms of the agreement, the reasonableness of the bargain, andthe age and experience of the accused" (Garcia, 92 NY2d at 870; see Morrison,78 AD3d at 1616). To the extent that defendant's contention that he was denied effectiveassistance of counsel is based on matters outside the [*2]record, itmust be raised by way of a motion pursuant to CPL article 440 (see People v Johnson, 81 AD3d1428, 1428 [2011], lv denied 16 NY3d 896 [2011]; People v Joyner, 19 AD3d 1129,1130 [2005]). Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J.,Fahey, Lindley and Martoche, JJ.