| People v Gardner |
| 2012 NY Slip Op 08581 [101 AD3d 1269] |
| December 13, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Clyde M.Gardner, Appellant. |
—[*1] Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.
Rose, J.P. Appeal from a judgment of the County Court of Franklin County (Main Jr., J.),rendered September 28, 2011, convicting defendant upon his plea of guilty of the crime ofconspiracy in the second degree.
Defendant was indicted on a single count of conspiracy in the second degree based uponallegations that he conspired to hire an acquaintance to murder the mother of his child, and hewas initially offered a plea to a reduced felony count with a sentence of no more than 2½ to7½ years. He rejected that offer and defense counsel thereafter, among other things, enteredinto a stipulation in lieu of motions providing for open file discovery. Ultimately, a new pleabargain was offered requiring defendant to plead guilty to the charged crime and waive his rightto appeal all matters other than the sentence and constitutional issues. In exchange, the Peopleagreed to recommend a sentence of 3 to 9 years in prison and County Court committed toimposing a prison term of no greater than 5 to 15 years. Defendant agreed to those terms andwaived his right to appeal. Thereafter, in accordance with the plea agreement, defendant wassentenced to 5 to 15 years in prison. He now appeals.
According to defendant, he was denied the effective assistance of counsel, and his guilty pleaand appeal waiver were the result of this claimed ineffectiveness. While defendant's assertionwould normally be unpreserved for our review in light of the absence of proof in the recordbefore us that he made a motion to withdraw his plea or vacate the judgment of conviction (see People v Walker, 84 AD3d1643, 1643-1644 [2011]), we conclude that defendant's claim at sentencing that he feltcounsel had not adequately explained the earlier plea offer to him sufficiently "constituted amotion to vacate his plea and, therefore, preserved this claim for the purposes of appeal" (People v Walley, 63 AD3d 1284,1285 n [2009]). Nonetheless, defendant's contention that his counsel was ineffective for "fail[ing]to take the steps necessary to hold open the existing settlement offer through the conclusion ofdiscovery and motion practice" has no support in this record. To the contrary, the onlyinformation before us concerning the reason the prior offer was allowed to expire comes fromdefendant's own statement at sentencing whereby he indicated that it was his decision to rejectthe offer based upon a television program he viewed in jail, as well as advice he received fromother inmates who told him that he would get a better plea offer if he waited. Thus, the recordproof does not support the claim that defendant was not afforded meaningful representation orthat counsel failed to fully explain the consequences of declining the initial offer (see People v Volfson, 69 AD3d1123, 1124 [2010]). To the extent that defendant's claims could be otherwise demonstratedby proof outside the record, they would more adequately be addressed by way of a CPL article440 motion (see id. at 1125).
Lastly, upon review of defendant's preserved claim that his sentence is harsh and excessive,"we find no abuse of discretion nor any extraordinary circumstances warranting a reduction ofthe sentence in the interest of justice" (People v Herring, 74 AD3d 1579, 1580 [2010]; see People v Elder, 89 AD3d1278, 1279 [2011], lv denied 18 NY3d 923 [2012]).
Lahtinen, Spain, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.