People v Langley

2013 NY Slip Op 07519 [111 AD3d 1023]

November 14, 2013

Appellate Division, Third Department

As corrected through Wednesday, December 25, 2013

The People of the State of New York, Respondent, vKenneth Langley, Appellant.

—[*1]Benjamin K. Bergman, Binghamton, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (Jeremy V. Murray of counsel), forrespondent.

McCarthy, J. Appeals (1) from a judgment of the County Court of Chemung County(Hayden, J.), rendered June 17, 2011, convicting defendant upon his plea of guilty of thecrime of rape in the third degree, and (2) from a judgment of said court, rendered June17, 2011, convicting defendant upon his plea of guilty of the crime of possessing asexual performance by a child.

Pursuant to a plea agreement, defendant pleaded guilty to one count of rape in thethird degree in full satisfaction of an indictment charging him with 15 counts of saidcrime and one count of criminal sexual act in the third degree and was sentenced to threeyears in prison followed by seven years of postrelease supervision. As a part of the sameplea agreement addressing a separate matter, defendant waived indictment and pleadedguilty to a superior court information charging him with possessing a sexual performanceby a child. County Court sentenced him to the agreed-upon term of 1 to 3 years in prisonto run consecutively to the sentence on the rape count. Defendant now appeals bothjudgments of conviction.

As the record does not reflect that defendant moved to vacate the judgment ofconviction or withdraw his guilty plea, his challenge to his plea to the rape count is notpreserved for our review (seePeople v Zimmerman, 87 AD3d 1225, 1225 [2011]; People v Planty, 85 AD3d1317, 1317-1318 [2011], lv denied 17 NY3d 820 [2011]). In any event, therecord reflects [*2]that the plea was knowing, voluntaryand intelligent. The terms of the plea agreement were clearly set forth on the record,County Court advised defendant of the rights he was forfeiting by pleading guilty anddefendant acknowledged that he understood these rights and proceeded to freely admithis guilt (see People v Zimmerman, 87 AD3d at 1225; People v Keebler, 15 AD3d724, 725-726 [2005], lv denied 4 NY3d 854 [2005]). Turning to defendant'sargument that the sentences imposed were harsh and excessive, we find no abuse ofdiscretion or extraordinary circumstances warranting modification of the sentencesimposed pursuant to the negotiated plea agreements (see People v Garren, 84 AD3d 1638, 1638-1639 [2011],lv denied 17 NY3d 816 [2011]; People v Miller, 70 AD3d 1120, 1121 [2010], lvdenied 14 NY3d 890 [2010]).

Rose, J.P., Stein and Garry, JJ., concur. Ordered that the judgments are affirmed.