| People v Leszczynski |
| 2012 NY Slip Op 04791 [96 AD3d 1162] |
| June 14, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ChristopherLeszczynski, Appellant. |
—[*1] D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered August 23, 2010, convicting defendant upon his plea of guilty of the crime of attemptedburglary in the first degree.
After defendant was implicated in the burglary of a residence in the Town of Milton, UlsterCounty, he pleaded guilty to attempted burglary in the first degree in satisfaction of a four-countindictment charging him with, among other things, burglary in the first degree. In accordancewith the plea agreement, defendant was subsequently sentenced as a persistent violent felonyoffender to a prison term of 16 years to life. Defendant now appeals and we affirm.
Defendant's challenges to the voluntariness of his plea are not preserved for our review, asthere is no indication in the record before us that he moved to withdraw his guilty plea or vacatethe judgment of conviction (see Peoplev Cogswell, 94 AD3d 1236, 1237 [2012]; People v Campbell, 81 AD3d 1184, 1185 [2011]). Nor does ourreview of the record reveal any basis to apply the exception to the preservation rule (see People v Harris, 82 AD3d1449, 1449 [2011], lv denied 17 NY3d 953 [2011]; People v Scribner, 77 AD3d 1022,1023 [2010], lv denied 16 NY3d 746 [2011]; People v Lopez, 74 AD3d 1498, 1499 [2010]).
We find no merit to defendant's contention that he was deprived of the effective [*2]assistance of counsel. It is well settled that, " '[i]n the context of aguilty 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 counsel'" (People v Singletary, 51 AD3d1334, 1335 [2008], lv denied 11 NY3d 741 [2008], quoting People v Ford,86 NY2d 397, 404 [1995]; accordPeople v Chaney, 72 AD3d 1194, 1195 [2010]). Defendant's assertion here that hereceived no benefit from the plea agreement is not supported by the record. Notably, the pleanegotiated on defendant's behalf resulted in an appreciable reduction in the potential prisonsentence that he might have otherwise received had he been convicted of the top count of theindictment as a repeat felony offender (see Penal Law § 70.08 [3] [a-1]; Peoplev Chaney, 72 AD3d at 1195; Peoplev Lee, 51 AD3d 1217, 1218 [2008]). Furthermore, contrary to defendant's contentions,counsel made appropriate pretrial motions and successfully secured the right to a pretrial hearingto address the suppression of certain evidence allegedly obtained illegally (see People v Riddick, 40 AD3d1259, 1261 [2007], lv denied 9 NY3d 925 [2007]).[FN1]
Defendant's claim that counsel failed to clarify whether he would be sentenced as a predicate(second) violent felony offender (see Penal Law § 70.04 [3] [b]), as opposed to apersistent violent felony offender (see Penal Law § 70.08 [3] [b]), is also belied bythe record. The record clearly reflects that the plea agreement was at all times premised ondefendant being sentenced as a persistent violent felony offender and that County Court explicitlyinformed him of such.[FN2]Defendant's additional contention that counsel failed to inform him of a possible intoxicationdefense concerns matters outside the record and is, therefore, more properly the subject of a CPLarticle 440 motion (see People vShurock, 83 AD3d 1342, 1344 [2011]; People v Pendelton, 81 AD3d 1037, 1039 [2011], lv denied16 NY3d 898 [2011]; People vLafoe, 75 AD3d 663, 664 [2010], lv denied 15 NY3d 953 [2010]).
Defendant also challenges the propriety of his sentencing as a persistent violent felonyoffender. At the sentencing hearing, defense counsel was provided with a predicate felonystatement and stated that he had reviewed it with defendant. When County Court then questioneddefendant regarding the statement, defendant admitted to the two prior violent felony convictionsset forth therein. Given his failure to timely controvert the allegations set forth in the People'spredicate felony statement, his argument that he was improperly sentenced, without a hearing, asa persistent violent felony offender is unpreserved for our review (see People v Smith, 73NY2d 961, 962-963 [1989]; People vWashington, 89 AD3d 1140, 1142 [2011], lv denied 18 NY3d 963 [2012]; People v Ochs, 16 AD3d 971, 972[2005]). To the extent that defendant argues that his sentence is illegal and, accordingly, that heis not required to preserve this issue, our review of the record reveals substantial compliance withCPL 400.15 and 400.16 (see People vNieves, 2 NY3d 310, 315 [2004]; People v Califano, 84 AD3d 1504, 1506-1507 [2011], lvdenied 17 NY3d 805 [2011]; People v Sullivan, 153 AD2d 223, 232 [1990], lvdenied 75 NY2d 925 [1990]) and we, therefore, find his arguments to be without merit.
Defendant's sentence was not harsh or excessive. Notably, given his status as a persistentviolent felon, the sentence was the most lenient indeterminate sentence allowed by [*3]statute for the crime to which he pleaded guilty (see PenalLaw § 70.08 [3] [b]).
We have examined defendant's remaining contentions and find them to be unavailing.
Mercure, J.P., Rose, Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: As a result of defendant'sdecision to plead guilty prior to trial, the hearing never took place.
Footnote 2: County Court's singularinadvertent use of the word "predicate" instead of "persistent" in the course of the sentencinghearing does not persuade us otherwise.