| People v Davis |
| 2014 NY Slip Op 00914 [114 AD3d 1003] |
| February 13, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vWesley Davis, Appellant. |
—[*1] Paul Czajka, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Columbia County(Koweck, J.), rendered July 18, 2012, convicting defendant upon his plea of guilty of thecrime of criminal sexual act in the first degree.
Defendant (born in 1948) waived indictment and agreed to be prosecuted by asuperior court information charging him with criminal sexual act in the first degree,which alleged that he engaged in oral sexual conduct with a three-year-old child. Inconjunction with his plea of guilty to that charge, defendant was informed that the Peoplewould make no recommendation as to sentencing. Furthermore, during the pleaproceedings, defendant executed a written document setting forth the conditions of theplea agreement, which, among other things, included a statement acknowledging thatCounty Court made "NO PROMISES WHATSOEVER" with respect to sentencing andadvised defendant of the maximum sentence that could be imposed. At that time,defendant also acknowledged discussing all aspects of the plea with counsel, and heexpressed satisfaction with the representation that he received. Defendant thereafter wassentenced to, among other things, the maximum permissible sentence, namely 25 years inprison, to be followed by 20 years of postrelease supervision. This appeal ensued.
We affirm. Initially, defendant's claim that he received ineffective assistance ofcounsel that impacted the voluntariness of his guilty plea is unpreserved for our review inlight of his failure to move to withdraw his plea or vacate the judgment of conviction(see People v Stroman, [*2]107 AD3d 1023,1025 [2013], lv denied 21 NY3d 1046 [2013]; People v Colon, 106 AD3d1367, 1368 [2013]). Defendant's contention that a postallocution motion was notnecessary here because the record before us supports his arguments is unpersuasive.Notably, his assertions herein that counsel failed to, among other things, pursue certainpretrial motions and raise all possible defenses "involve matters outside the record andare more properly the subject of a CPL article 440 motion" (People v Wilson, 92 AD3d981, 981-982 [2012], lv denied 19 NY3d 1029 [2012]).
Lastly, we are unpersuaded that the sentence imposed is harsh and excessive. Whiledefendant expressed remorse at sentencing and his counsel urged imposition of theminimum permissible sentence, County Court determined that the maximum sentence fora class B violent felony sex offense (see Penal Law §§ 60.05 [3];70.02 [3] [a]; 70.45 [2-a] [f]; 70.80 [4] [a] [i]; see also Penal Law § 130.50[3]) was appropriate given the nature of defendant's crime, where he "took advantage ofsomeone who was defenseless and young, and . . . altered [that child's] life."Contrary to defendant's argument, we cannot conclude from the record, which indicatesthat he was thoroughly apprised of his sentence exposure, that he "demonstrate[d] a clearabuse of discretion or the existence of any extraordinary circumstance which wouldwarrant modification" (People vDunton, 30 AD3d 828, 830 [2006], lv denied 7 NY3d 847 [2006]; see People v Mann, 41 AD3d977, 982 [2007], lv denied 9 NY3d 924 [2007]).
Lahtinen, J.P., McCarthy and Rose, JJ., concur. Ordered that the judgment isaffirmed.