People v Lord

2015 NY Slip Op 04526 [128 AD3d 1277]

May 28, 2015

Appellate Division, Third Department

As corrected through Wednesday, July 1, 2015

[*1]

The People of the State of New York,Appellant, v Scott G. Lord, Respondent.

Norbert A. Higgins, Binghamton, for appellant.

Gerald F. Mollen, District Attorney, Binghamton (Brian Leeds of counsel), forrespondent.

Peters, P.J. Appeals from a judgment of the County Court of Broome County(Cawley, J.), rendered December 12, 2012, which resentenced defendant following hisconviction upon his plea of guilty of the crimes of grand larceny in the fourth degree andburglary in the third degree.

Pursuant to a negotiated agreement, defendant entered a guilty plea to grand larcenyin the fourth degree as charged in an indictment and also waived indictment and entereda guilty plea to burglary in the third degree as charged in a superior court information.The agreement called for concurrent prison terms of 2 to 4 years and 21/2to 5 years, respectively, contingent upon defendant abiding certain conditions, includingnot being arrested. After defendant was arrested while awaiting sentencing, CountyCourt imposed an enhanced prison sentence, as later corrected, of 2 to 4 years on thegrand larceny charge and 3 to 6 years on the burglary charge, to be served concurrently,as an admitted second felony offender.^[FN1] Defendant moved pursuant to CPL440.10 to vacate the judgment, premised upon his asserted inability to gain access tocertain programs while incarcerated due to outstanding charges in town court. CountyCourt denied the motion, finding that the plea had not been conditioned on any [*2]promised prison programming.^[FN2] Defendant now appeals solely from thejudgment of conviction.^[FN3]

Defendant argues that his trial counsel was ineffective in failing to obtain dismissalof a pending open charge that was satisfied by this plea agreement, which rendered himineligible for certain prison programs. Defendant did not preserve this argument bymaking a postallocution motion to withdraw his guilty plea (see People v Kerwin, 117AD3d 1097, 1097-1098 [2014]). Furthermore, although his CPL article 440 motionwas discussed at the resentencing, defendant did not argue that counsel had beenineffective on this or any ground, and he expressly declined to withdraw his guilty plea,thereby failing to preserve this claim (see People v Toye, 107 AD3d 1149, 1151 n 1 [2013], lvdenied 22 NY3d 1091 [2014]). In any event, the record on the direct appeal does notestablish any of defendant's allegations, including that he was denied admission to prisonprograms, that he otherwise would have been eligible for them had the pending chargesbeen dismissed, or that counsel did not make efforts to obtain dismissal thereof. Uponreview of the record, we find that counsel negotiated a favorable plea agreement and"nothing in the record casts doubt on the apparent effectiveness of counsel" (People v Ramey, 123 AD3d1290, 1290-1291 [2014], lv denied 25 NY3d 953 [2015] [internal quotationmarks and citations omitted]). To the extent that the allegations concern matters outsidethe record on direct appeal, they were properly raised in a CPL article 440 motion tovacate the judgment (see Peoplev Patrick, 125 AD3d 1053, 1053 [2015], lv denied 25 NY3d 991 [Apr. 27, 2015]), which is not currently before this Court.

We are not persuaded that defendant's enhanced sentence was harsh and excessive.To the extent that defendant argues that County Court improvidently enhanced hissentence, the record reflects that he was advised at the time of the plea of theconsequences of violating the no-arrest condition and expressly waived any challenge toor hearing regarding the enhancement of the sentence, in exchange for an additionalpromise that his plea would also satisfy other pending charges (see People vOutley, 80 NY2d 702, 713 [1993]). Given defendant's significant criminal history,that the convictions stem from criminal conduct occurring on multiple occasions againstdifferent victims, and that the sentence imposed was less than the statutory maximum(see Penal Law § 70.06 [3] [d]; [4] [b]), we find no extraordinarycircumstances justifying a reduction of the sentence in the interest of justice (see People v Paneto, 112AD3d 1230, 1231 [2013], lv denied 23 NY3d 1023 [2014]).

Lahtinen, McCarthy and Rose, JJ., concur. Ordered that the judgment isaffirmed.

Footnote 1:The resentencing wasnecessitated by the failure to file a second felony offender statement prior to the initialsentencing.

Footnote 2:While defendant'smotion pursuant to CPL article 440 was filed after the initial sentencing but before theresentencing, County Court's decision on that motion was filed on the same date asresentencing.

Footnote 3:No application wasmade to this Court for permission to appeal from the denial of defendant's CPL 440.10motion (see CPL 460.15) and, accordingly, the order denying that motion is notproperly before us.