People v Gabbidon

2015 NY Slip Op 08857 [134 AD3d 736]

December 2, 2015

Appellate Division, Second Department

As corrected through Wednesday, February 11, 2015

[*1]

The People of the State of New York,Respondent, v Craig E. Gabbidon, Appellant.

Del Atwell, East Hampton, N.Y., for appellant.

William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea ofcounsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Dutchess County(Greller, J.), rendered December 23, 2014, convicting him of criminal sexual act in thefirst degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant's contention that the County Court misinformed him of his maximumsentencing exposure were he to proceed to trial is unpreserved for appellate review, sincethe defendant did not raise this specific ground in his motion to withdraw his plea (see People v Williams, 129AD3d 1000 [2015]; Peoplev King, 115 AD3d 986 [2014]; People v Delarosa, 104 AD3d 956 [2013]). In any event,the court properly informed the defendant that consecutive sentences could be imposed ifhe were convicted of the first two counts of the indictment, since each count as chargedinvolved a separate sexual act constituting a distinct offense (see People v Colon, 61 AD3d772, 773 [2009]; People vDallas, 31 AD3d 573, 574 [2006]; People v Gersten, 280 AD2d 487[2001]).

Contrary to the defendant's contention, he was not deprived of the effectiveassistance of counsel due to his counsel's failure to recognize and address the purportederror regarding his maximum sentencing exposure, since, as noted above, the CountyCourt properly informed the defendant of his maximum sentencing exposure (see People v Cromwell, 99AD3d 1017 [2012]; Peoplev Royster, 40 AD3d 885, 886 [2007]). Furthermore, the record demonstratesthat the defendant received an advantageous plea, and nothing in the record casts doubton the apparent effectiveness of counsel (see People v Ford, 86 NY2d 397, 404[1995]; People v Modica, 64 NY2d 828, 829 [1985]; People v Baldi, 54NY2d 137, 147 [1981]). There is nothing in the record to support the defendant's claimthat counsel's performance was deficient (see Hill v Lockhart, 474 US 52, 58[1985]; Strickland v Washington, 466 US 668, 687 [1984]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Mastro, J.P., Hall, Sgroi and Duffy, JJ., concur.