| People v Ramey |
| 2014 NY Slip Op 08874 [123 AD3d 1290] |
| December 18, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vAlexei Ramey, Appellant. |
Tara Brower Wells, Latham, for appellant.
Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Schenectady County(Giardino, J.), rendered December 2, 2011, convicting defendant upon his plea of guiltyof the crime of attempted assault in the first degree.
Defendant hired an individual, who happened to be an undercover police officer, tophysically harm his pregnant ex-girlfriend in order to cause the death of the child she wascarrying. Before the plan was effectuated, he was apprehended by police and charged inan indictment with a number of crimes. In satisfaction of the indictment, he pleadedguilty to attempted assault in the first degree and waived his right to appeal. AlthoughCounty Court advised defendant that he could be sentenced to a determinate prison termof between 3
Initially, we note that defendant's ineffective assistance of counsel claim, to theextent that it impacts the voluntariness of his guilty plea, survives his waiver of the rightto appeal and [*2]has been preserved by his motion towithdraw his guilty plea (seePeople v Howard, 119 AD3d 1090, 1091 [2014], lv denied 24 NY3d961 [2014]; People vDevino, 110 AD3d 1146, 1147 [2013]). Turning to the merits, the Court ofAppeals has recognized that the constitutional requirement of effective assistance ofcounsel is satisfied "[s]o long as the evidence, the law, and the circumstances of aparticular case, viewed in totality and as of the time of the representation, reveal that theattorney provided meaningful representation" (People v Baldi, 54 NY2d 137, 147[1981]). " 'In the context of a guilty plea, a defendant has been affordedmeaningful representation when he or she receives an advantageous plea and nothing inthe record casts doubt on the apparent effectiveness of counsel' " (People v Sylvan, 108 AD3d869, 870 [2013], lv denied 22 NY3d 1091 [2014], quoting People v Carmona, 66 AD3d1240, 1242 [2009], lv denied 14 NY3d 799 [2010]; see People v Wren, 119 AD3d1291, 1292 [2014]).
Here, although defendant made complaints about his attorney during the course ofthe proceedings, defendant's claims that his attorney gave inaccurate advice, failed todiscuss strategies and defenses and did not thoroughly investigate defendant's caseconcern matters outside the record that are more properly the subject of a CPL article 440motion (see People vWilson, 92 AD3d 981, 982 [2012], lv denied 19 NY3d 1029 [2012]).The record here discloses that defense counsel engaged in extensive discovery andmotion practice, that included seeking the dismissal of the first count of the indictment,and advocated vigorously on defendant's behalf. Contrary to defendant's claim, it furthershows that he and his attorney reviewed potentially incriminating tapes and transcriptsprior to his entry of the guilty plea, and that his attorney negotiated a favorable pleaconsidering the severity of the potential sentence if defendant were convicted of othercounts of the indictment. In sum, under the circumstances presented, we find thatdefendant was provided with meaningful representation (see People v Brown, 115AD3d 1115, 1116 [2014], lv denied 24 NY3d 959 [2014]).
As for defendant's motion to withdraw his plea, whether he should be permitted to doso " 'rests within the sound discretion of the trial court and, generally, such amotion should not be granted absent a showing of innocence, fraud or mistake in theinducement' " (People vBarton, 113 AD3d 927, 928 [2014], quoting People v Galvan, 107 AD3d 1058, 1058 [2013], lvdenied 21 NY3d 1042 [2013]; see People v Little, 92 AD3d 1036, 1036 [2012]). Contraryto defendant's claim, his plea was not rendered involuntary due to the ineffectiveness ofhis counsel. Moreover, the record discloses that defendant understood the ramificationsof pleading guilty, including the rights he was forfeiting, and was not induced to enterthe plea by threats or promises. Although he disclosed that he was taking painmedication, defendant assured County Court that this did not interfere with his ability tounderstand the proceedings. In view of the foregoing, County Court did not abuse itsdiscretion in denying defendant's motion to withdraw his plea without a hearing (see People v Hoyt, 106 AD3d1340, 1340 [2013]; Peoplev Smith, 89 AD3d 1328, 1328 [2011]).
Lahtinen, Garry, Rose and Lynch, JJ., concur. Ordered that the judgment isaffirmed.