| People v Wares |
| 2015 NY Slip Op 00572 [124 AD3d 1079] |
| January 22, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Clifford William Wares, Appellant. |
Theodore J. Stein, Woodstock, for appellant, and appellant pro se.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Lahtinen, J.P. Appeal from a judgment of the County Court of Ulster County(Williams, J.), rendered January 16, 2013, convicting defendant upon his plea of guilty ofthe crimes of disseminating indecent material to minors in the first degree (two counts)and disseminating indecent material to minors in the second degree.
Between November 2010 and March 2011, defendant, then 38 years old, allegedlysent to the 13-year-old victim a series of electronic communications in which he, amongother things, graphically discussed and solicited various forms of sexual activity with thevictim. He also attached numerous photographs of, among other things, his erect penis,individuals engaged in various explicit sexual activities, and an individual having sexwith an animal. He was charged in a 37-count indictment with 31 counts ofdisseminating indecent material to a minor in the first degree, five counts ofdisseminating indecent material to a minor in the second degree and one count ofendangering the welfare of a child. Defendant was offered a plea to threecounts—two counts of disseminating indecent material to a minor in the firstdegree and one count of disseminating indecent material to a minor in the seconddegree—in satisfaction of all charges. County Court stated that, if he accepted theplea, the maximum allowable sentences on the three counts would be imposedconsecutively. Defendant accepted the plea, but later moved before sentencing towithdraw his guilty plea. After a hearing, County Court denied defendant's motion. Hewas sentenced consistent with the plea to consecutive prison terms totaling 9 to 18 years.Defendant appeals.
Defendant contends that the indictment failed to adequately identify the specific acts[*2]constituting the charged crimes. "An indictmentcount which incorporates by reference the statutory provision applicable to the chargedcrime sufficiently alleges all of the elements of that crime, rendering the count valid" (People v Mitchell, 94 AD3d1252, 1252 [2012], lv denied 19 NY3d 964 [2012] [internal quotation marksand citations omitted]; see People v D'Angelo, 98 NY2d 733, 735 [2002]). Here,each count of the indictment cited the pertinent Penal Law section and quoted from thestatute. With regard to the factual allegations of the indictment, by pleading guilty,defendant waived any challenge to the specificity of those allegations (see People v Cole, 118 AD3d1098, 1099-1100 [2014]; People v Downs, 26 AD3d 525, 526 [2006], lvdenied 6 NY3d 847 [2006]).
We find no merit in defendant's argument that he did not receive the effectiveassistance of counsel. "It is well settled that, in the context of a guilty plea, a defendanthas been afforded meaningful representation when he or she receives an advantageousplea and nothing in the record casts doubt on the apparent effectiveness of counsel" (People v Leszczynski, 96AD3d 1162, 1162 [2012], lv denied 19 NY3d 998 [2012] [internal quotationmarks, brackets and citations omitted]; accord People v Ford, 86 NY2d 397, 404[1995]; People v Seuffert,104 AD3d 1021, 1022 [2013], lv denied 21 NY3d 1009 [2013]). Defendantreceived an advantageous plea in that he faced 37 counts and had exposure to a muchlonger sentence than he ultimately received as part of the plea. Contrary to his currentcontention that his attorney pressured him into the plea, defendant stated during the pleathat his attorney had not forced him to take the plea and he acknowledged that he wassatisfied with his attorney's representation of him. Nothing in the record reflects that therepresentation that defendant received—from the commencement of his criminalcase to the completion of his favorable plea—was ineffective. His assertion that hereceived ineffective assistance from the separate attorney who represented him in hismotion to withdraw his plea is unpersuasive, in that, the purported errors amount tomerely second-guessing legitimate legal strategy (see People v Benevento, 91NY2d 708, 712-713 [1998]).
Defendant next asserts that County Court erred in not allowing him to withdraw hisplea. "Whether a defendant should be permitted to withdraw his or her plea rests withinthe sound discretion of the trial court and, generally, such a motion should not be grantedabsent a showing of innocence, fraud or mistake in the inducement" (People v Galvan, 107 AD3d1058, 1058 [2013], lv denied 21 NY3d 1042 [2013] [citations omitted]; accord People v Barton, 113AD3d 927, 928 [2014]). Defendant's claim at the hearing that he had been under theinfluence of illegally obtained prescription drugs at the time of the plea was in directconflict to his acknowledgment during the plea that he was not under the influence ofany such substance. Moreover, County Court had observed defendant and placed on therecord at the plea proceeding that he appeared in full control of his faculties. Defendant'sclaim regarding his use of drugs presented, at most, a credibility issue that County Courtresolved against him (see People v Torra, 191 AD2d 738, 738-739 [1993], lvdenied 81 NY2d 1021 [1993]; see also People v Debberman, 113 AD3d 929, 929 [2014]).With regard to his claim of innocence in his motion, "[a] defendant is not entitled towithdraw his guilty plea based on a subsequent unsupported claim of innocence, wherethe guilty plea was voluntarily made with the advice of counsel following an appraisal ofall the relevant factors" (Peoplev Haffiz, 19 NY3d 883, 884 [2012] [internal quotation marks and citationomitted]). Defendant was fully informed of and acknowledged that he understood hisvarious rights, and he voluntarily pleaded guilty with no claim of innocence. CountyCourt did not abuse its discretion in denying defendant's motion to withdraw hisplea.
In light of defendant's criminal record, the nature of his current crimes and his receiptof the agreed-upon sentence, we find no merit in his argument that his sentence washarsh and excessive. County Court did not abuse its discretion in the sentence it imposedand there are no [*3]extraordinary circumstances meritinga reduction thereof (see Peoplev Crowe, 111 AD3d 1164, 1165 [2013], lv denied 22 NY3d 1155[2014]; People v Vanness,106 AD3d 1262, 1264-1265 [2013], lv denied 22 NY3d 1044 [2013]). Theremaining arguments have been considered and are without merit.
McCarthy, Egan Jr. and Devine, JJ., concur. Ordered that the judgment isaffirmed.