| People v Wasley |
| 2014 NY Slip Op 05460 [119 AD3d 1216] |
| July 24, 2014 |
| Appellate Division, Third Department |
[*1] (July 24, 2014)
| 1 The People of the State of New York, Respondent, vRaymond R. Wasley, Appellant. |
Linda B. Johnson, West Sand Lake, for appellant.
Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Rose, J. Appeal from the judgment of the County Court of Broome County (Smith,J.), rendered May 14, 2010, convicting defendant upon his plea of guilty of the crime ofattempted criminal sexual act in the first degree.
Pursuant to a plea agreement and in satisfaction of a three-count indictment,defendant entered a guilty plea to the second count, as reduced, admitting that he wasguilty of attempted criminal sexual act in the first degree. The charges stemmed from hisattempt, at knife point, to engage in sexual conduct with an adult male by forciblecompulsion. He was sentenced, as an admitted second felony offender, to theagreed-upon prison term of 10 years, with 10 years of postrelease supervision. Defendantnow appeals.
We affirm. Given that the record does not reflect that defendant moved to withdrawhis guilty plea, his challenges to the voluntariness and factual sufficiency of the plea andthe effectiveness of his counsel are not preserved for appellate review (see People v Watson, 115AD3d 1016, 1017 [2014]; People v White, 104 AD3d 1056, 1056 [2013], lvdenied 21 NY3d 1021 [2013]). Contrary to defendant's claims, the narrow exceptionto the preservation requirement was not triggered during the plea colloquy here, asdefendant did not make any statements during the allocution that called into doubt thevoluntariness of his plea or that were inconsistent with his guilt (see People vLopez, 71 NY2d 662, 666-667 [1988]; People v Bressard, 112 AD3d 988, 989 [2013], lvdenied 22 NY3d 1137 [2014]). The fact that, during a [*2]prior proceeding, defendant had been hesitant or unwillingto fully allocute to the charged conduct did not undermine his subsequent unqualifiedallocution to the reduced charge (see People v Good, 83 AD3d 1124, 1125 [2011], lvdenied 17 NY3d 816 [2011]).
In any event, the record reveals that the plea colloquy, while brief, adequatelyestablished that defendant understood and voluntarily agreed to the plea terms that he haddiscussed at length with counsel, and that he admitted that he had engaged in the specificcharged conduct (see People vBrown, 14 NY3d 113, 116 [2010]; People v Fiumefreddo, 82 NY2d536, 543 [1993]). Further, the record does not support defendant's contention that he wasconfused or unable to comprehend the proceedings. Likewise, defendant received anadvantageous plea, and nothing in the record supports his assertion that defense counselprovided ineffective assistance during the plea proceedings, or failed to protect his rights(see People v Leszczynski,96 AD3d 1162, 1162 [2012], lv denied 19 NY3d 998 [2012]; People vGood, 83 AD3d at 1126). To the extent that these claims concern matters outside therecord on appeal, they are more appropriately addressed in a CPL article 440 motion (see People v Lohnes, 112AD3d 1148, 1150 [2013]). Finally, considering defendant's significant criminalhistory, the leniency reflected in the plea deal (see Penal Law§§ 70.06 [6] [a], [b]; 110.00, 130.50 [1]) and County Court'sconsideration of defendant's mental health evaluation, we do not find extraordinarycircumstances or an abuse of discretion so as to warrant a reduction of the negotiatedsentence in the interest of justice (see People v Feliciano, 108 AD3d 880, 882 [2013], lvdenied 22 NY3d 1040 [2013]).
Lahtinen, J.P., McCarthy, Lynch and Devine, JJ., concur. Ordered that the judgmentis affirmed.