| People v Brooks |
| 2014 NY Slip Op 04264 [118 AD3d 1123] |
| June 12, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vWilliam A. Brooks Jr., Appellant. |
David E. Woodin, Catskill, for appellant.
Paul Czajka, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Columbia County(Nichols, J.), rendered January 3, 2012, convicting defendant upon his plea of guilty ofthe crime of assault in the first degree.
Pursuant to a negotiated plea agreement, defendant pleaded guilty to assault in thefirst degree stemming from an incident in which the victim was beaten with an air rifle.No promises were made with respect to sentencing, although the People and defensecounsel jointly recommended that defendant would be sentenced to eight years in prisonfollowed by five years of postrelease supervision.[FN1]Defendant waived his right to appeal,but preserved his right to appeal if he received a sentence greater than the jointrecommendation. County Court departed from the joint recommendation and sentenceddefendant, as a second felony offender, to a prison [*2]term of 15 years followed by a five-year period ofpostrelease supervision. Defendant appeals.[FN2]
We find no merit to defendant's contention that County Court failed to acquirepersonal jurisdiction over him. At his arraignment, defendant was present with counsel,who acknowledged receipt of the indictment, waived a reading of the indictment andentered a plea of not guilty on defendant's behalf. Thus, the statutory requirements for avalid arraignment were met (see CPL 210.15 [1]; People v Oakley, 112 AD3d1064, 1064 [2013], lv denied 22 NY3d 1140 [2014]; People vBuckner, 274 AD2d 832, 833 [2000], lv denied 95 NY2d 904 [2000]).
Defendant's assertion that he was denied the effective assistance of counsel does notimplicate the voluntariness of his plea and, therefore, is foreclosed by his valid waiver ofthe right to appeal (see People vJean-Francois, 82 AD3d 1366, 1367 [2011], lv denied 17 NY3d 797[2011]; People v Morales,68 AD3d 1356, 1357 [2009], lv denied 14 NY3d 803 [2010]; People v Cipriani, 61 AD3d1214, 1216 [2009], lv denied 13 NY3d 795 [2009]). Defendant alsocontends that the 11-month delay in sentencing was unreasonable pursuant to CPL380.30 (1). Although this claim is not barred by his appeal waiver (see People vCampbell, 97 NY2d 532, 534-535 [2002]), he failed to preserve the issue for ourreview by objecting in County Court or moving to dismiss the indictment on that ground(see People v Dissottle, 68AD3d 1542, 1543 [2009], lv denied 14 NY3d 799 [2010]). In any event, thedelay was reasonable and provides no basis for dismissal of the indictment, particularlygiven that it was almost exclusively attributable to defendant's own adjournment requests(see People v Campbell, 97 NY2d at 533-534; People v Ball, 68 AD3d1148, 1149 [2009]; Peoplev Arroyo, 22 AD3d 881, 882 [2005], lv denied 6 NY3d 773 [2006];People v Hicks, 226 AD2d 938, 941 [1996], lv denied 88 NY2d 937[1996]).
Finally, although defendant's challenge to the severity of his sentence is notprecluded by his appeal waiver (see People v O'Connell, 80 AD3d 1007, 1007 [2011]; People v Garrand, 22 AD3d959, 960 [2005], lv denied 6 NY3d 812 [2006]), we find no merit to hisclaim that it is harsh and excessive. County Court was not bound by the joint sentencingrecommendation and repeatedly reminded defendant of this fact throughout the pleaproceedings (see People vThompson, 79 AD3d 1457, 1457-1458 [2010]; People v Watson, 61 AD3d1217, 1219 [2009], lv denied 12 NY3d 930 [2009]; People vSantana, 284 AD2d 730, 731 [2001], lv denied 96 NY2d 924 [2001]). Giventhe violent nature of defendant's crime, his lack of remorse and the fact that his sentencewas well below the statutory maximum, we find no abuse of discretion or extraordinarycircumstances that would warrant a reduction of his sentence in the interest of justice (see People v Hasenflue, 110AD3d 1108, 1109 [2013], lv denied 22 NY3d 1199 [2014]; People v Brunson, 68 AD3d1551, 1557 [2009], lv denied 15 NY3d 748 [2010]; People vWatson, 61 AD3d at 1219; People v Smith, 288 AD2d 693, 693 [2001],lv denied 97 NY2d 761 [2002]).
Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Although the partiesinitially agreed to a joint recommendation of five years in prison, subsequent informationcame to light that resulted in a joint recommendation of eight years in prison.
Footnote 2:While defendant's noticeof appeal incorrectly states the date upon which the judgment of conviction wasrendered, we exercise our discretion to disregard this misstatement and treat the notice asvalid (see CPL 460.10 [6]; People v Pimentel, 108 AD3d 861, 864 n 2 [2013], lvdenied 21 NY3d 1076 [2013]).