People v Kuhlmann

2015 NY Slip Op 05708 [130 AD3d 1086]

July 2, 2015

Appellate Division, Third Department

As corrected through Wednesday, September 2, 2015

[*1](July 2, 2015)

The People of the State of New York,Respondent, v Roy Kuhlmann, Appellant.

Robert A. Regan, Glens Falls, for appellant, and appellant pro se.

Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.

Garry, J. Appeal from a judgment of the County Court of Warren County (Hall, J.),rendered December 19, 2012, convicting defendant upon his plea of guilty of the crimeof assault in the second degree.

In satisfaction of a 10-count indictment and other potential charges arising frommultiple acts of domestic violence against his girlfriend in 2011 and 2012, defendantpleaded guilty to assault in the second degree, admitting that he intentionally causedserious physical injuries to her. In exchange, he was promised a sentence not to exceed51/2 years in prison and five years of postrelease supervision. Atsentencing, defendant discharged his attorney and proceeded pro se, and County Courtimposed a prison sentence of 51/2 years with three years of postreleasesupervision and an order of protection was issued in favor of the victim. Defendantappeals.

We affirm. Initially, defendant's contention that he discharged his assigned counselprior to the plea proceedings is not supported by the record, which reveals that defendantaffirmed that assigned counsel continued to represent him and was authorized to speakon his behalf, and that he was satisfied with her representation. When defendantdischarged counsel at sentencing, he neither requested nor demonstrated good cause forthe appointment of substitute counsel (see People v Porto, 16 NY3d 93, 99-100 [2010]).Defendant's further challenge to his guilty plea as involuntary was not, as he claims,preserved for our review by an appropriate postallocution motion to withdraw his guiltyplea (see People v Guyette,121 AD3d 1430, 1431[*2][2014]), and he did notmake any statements during the plea allocution that triggered the narrow exception to thepreservation requirement (seePeople v Tyrell, 22 NY3d 359, 363-364 [2013]; People v Lopez, 71NY2d 662, 665-666 [1988]). In any event, the record reflects that defendant's plea wasknowing, voluntary and intelligent (see People v Tyrell, 22 NY3d at 365), and hisargument that the indictment was not supported by legally sufficient evidence waswaived by his valid guilty plea (see People v Hansen, 95 NY2d 227, 233 [2000];People v Caban, 89 AD3d1321, 1322 [2011]).

Further, defendant's pro se allegation that County Court and defense counsel"changed the record" to alter the terms of the plea agreement is not supported by therecord before us and, given that it concerns matters outside the record, it is more properlyraised in a CPL article 440 motion (see People v Elliott, 62 AD3d 1098, 1099 [2009], lvdenied 12 NY3d 924 [2009]; People v Ramey, 123 AD3d 1290, 1291 [2014], lvdenied 25 NY3d 953 [2015]). Defendant's related claim that County Court promisedhim a three-year sentence is belied by the record (see People v La Porte, 31 AD3d 800, 801 [2006], lvdenied 7 NY3d 849 [2006]). Finally, in view of defendant's extensive criminalhistory, the violent nature of the charged conduct and his lack of remorse, we find noextraordinary circumstances or abuse of discretion warranting a reduction of thenegotiated sentence in the interest of justice (see People v Shan, 117 AD3d 1098, 1098-1099 [2014],lv denied 23 NY3d 1042 [2014]).

Peters, P.J., Lahtinen and Lynch, JJ., concur. Ordered that the judgment isaffirmed.