| People v Banker |
| 2016 NY Slip Op 02871 [138 AD3d 1253] |
| April 14, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vKip R. Banker, Appellant. |
Mark Schneider, Plattsburgh, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas J. Evanovich of counsel),for respondent.
Appeal from a judgment of the County Court of Clinton County (McGill, J.),rendered January 24, 2013, convicting defendant upon his plea of guilty of the crimes ofattempted aggravated assault upon a police officer or peace officer (three counts) andcriminal mischief in the second degree.
Defendant was indicted on three counts of attempted aggravated assault on a policeofficer or peace officer and criminal mischief in the second degree. The charges stemfrom an incident that occurred on April 18, 2012, when three parole officers arrived atdefendant's home and ordered him to pull over the tractor he was driving. In response,defendant rammed the tractor into the vehicle occupied by the parole officers, two ofwhom escaped after the impact, and then drove the tractor into the vehicle again, pushingit to the edge of an embankment with one officer inside. Defendant drove the tractor inreverse, pinning one officer against a tree, and then drove directly in the direction of thethird officer, who managed to avoid being hit. During the incident, the officers firednumerous shots in an attempt to stop defendant, although no one was seriously injured.Defendant ultimately pleaded guilty to the entire indictment, leaving sentencing to thediscretion of County Court. The court imposed upon defendant, a second violent felonyoffender, concurrent prison terms of 16 years on each attempted assault conviction and3
On appeal, defendant's primary contention is that his guilty plea was the product ofmental illness and that the sentence should be reduced in the interest of justice.Significantly, County Court ordered a CPL article 730 competency examination at theoutset, and two [*2]psychiatrists concluded that he wascompetent to proceed (see CPL 730.10 [1]; People v Mendez, 1 NY3d 15, 19 [2003]). To the extentthat defendant challenges his plea as involuntary, the record does not reflect that hepreserved this claim by making an appropriate postallocution motion to withdraw hisplea, and his remarks during the plea allocution did not trigger the exception to thepreservation doctrine (seePeople v Tyrell, 22 NY3d 359, 363-364 [2013]; People v Lopez, 71NY2d 662, 665 [1988]; Peoplev Guyette, 121 AD3d 1430, 1431 [2014]).
In imposing sentence, County Court fully considered defendant's health andsubstance abuse problems, as well as his failure to address them over many years. Inaddition, the court gave weight to his serious criminal history, which includes priorassaults, and the fact that his violent conduct came very close to killing the officers.Contrary to defendant's claim, the fact that, prior to his competency examinations andomnibus motion, he was offered a plea agreement providing for a lower sentence thatalso required an appeal waiver, which he rejected, did not establish that the later sentenceupon his guilty plea to the entire indictment was unwarranted. Under the circumstances,we cannot agree that the sentences, which were significantly less than the maximumpotential consecutive sentences for these class C violent felonies (see Penal Law§§ 70.02 [1] [b]; [3] [b] [ii]; 70.25 [2]), were harsh or excessive or thatextraordinary circumstances warrant a modification in the interest of justice. To theextent that defendant argues matters that are outside the record on appeal, they are moreappropriately addressed in a CPL article 440 motion to vacate (see People vGuyette, 121 AD3d at 1431).
Lahtinen, J.P., Rose, Lynch and Clark, JJ., concur. Ordered that the judgment isaffirmed.