| People v Brown |
| 2014 NY Slip Op 08878 [123 AD3d 1300] |
| December 18, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vLynn G. Brown, Appellant. |
John R. Trice, Elmira, for appellant.
Gerald F. Mollen, District Attorney, Binghamton (Sophia A. Bergman of counsel),for respondent.
Rose, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered February 6, 2013, convicting defendant upon his plea of guilty of the crime ofgrand larceny in the third degree.
Defendant waived indictment and was charged in a superior court information withgrand larceny in the third degree after he stole a quantity of jewelry, believed to bevalued at $11,569, from his girlfriend's mother. He pleaded guilty to this charge and,under the terms of the plea agreement, was to be sentenced as a second felony offender to3 to 6 years in prison. County Court indicated, however, that it might consider sentencingdefendant to a lesser prison term if it was disclosed that the value of the stolen jewelrywas substantially less than $11,569. Ultimately, even though the amount of restitutionordered was $6,215, County Court adhered to the original sentencing agreement.Defendant now appeals.
To the extent that defendant's claim that his guilty plea was defective is a challengeto the factual sufficiency of the plea allocution, it has not been preserved for our reviewdue to the absence of any indication in the record that defendant moved to withdraw hisguilty plea (see People v Lopez, 71 NY2d 662, 665 [1988]; People v Wasley, 119 AD3d1216, 1216 [2014]). The narrow exception to the preservation rule is inapplicableinasmuch as defendant did not make any statements to negate an essential element of thecrime or cast doubt upon his guilt (see People v Lopez, 71 NY2d at 666-667;People v Wasley, 119 AD3d at 1217). For the same reason, defendant's challengeto the effectiveness of his counsel is also unpreserved (see People v [*2]Youngblood, 107 AD3d 1159, 1160 [2013], lvdenied 21 NY3d 1078 [2013]; People v Douglas, 38 AD3d 1063, 1063 [2007], lvdenied 9 NY3d 843 [2007]). In any event, the record reflects that defendantvoluntarily and knowingly pleaded guilty and nothing in the record suggests that he wasdeprived of the effective assistance of counsel.
With regard to the sentence imposed, the record discloses that defendant received thebenefit of his bargain as County Court sentenced him, in accordance with the pleaagreement, to a prison term of 3 to 6 years (see e.g. People v Klein, 26 AD3d 530, 531 [2006], lvdenied 6 NY3d 849 [2006]). Although the court agreed to consider a lesser sentencedepending upon the amount of restitution awarded, no commitment was made to imposea lesser sentence. Furthermore, we reject defendant's challenge to the severity of thesentence. The facts reveal that defendant took the jewelry while residing with hisgirlfriend in the home of her parents following a two-week drinking binge. Given thisviolation of trust and defendant's extensive criminal record, we find no extraordinarycircumstances nor any abuse of discretion warranting a reduction of the sentence in theinterest of justice (see People vCard, 115 AD3d 1007, 1009 [2014], lv denied 23 NY3d 961 [2014]; People v Adkins, 108 AD3d943 [2013]).
Lahtinen, J.P., Garry and Devine, JJ., concur. Ordered that the judgment isaffirmed.