| People v Howe |
| 2018 NY Slip Op 05631 [164 AD3d 951] |
| August 2, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Shane Howe, Appellant. |
Michelle E. Stone, Vestal, for appellant.
Patrick A. Perfetti, District Attorney, Cortland (Elizabeth McGrath of counsel), forrespondent.
McCarthy, J.P. Appeal from a judgment of the Supreme Court (Campbell, J.), renderedNovember 5, 2015 in Cortland County, convicting defendant upon his plea of guilty of the crimeof unlawful imprisonment in the second degree.
In satisfaction of various charges, defendant pleaded guilty to unlawful imprisonment in thesecond degree in exchange for the People's promise to recommend a conditional discharge butwith no sentencing commitment by Supreme Court. Defendant moved to withdraw his plea onthe grounds that he is innocent and that the plea was not knowingly and intelligently entered ashe was not aware of the consequences thereof. Supreme Court denied the motion and sentenceddefendant to three years of probation. Defendant appeals.
Defendant's challenges to the factual sufficiency of the plea and the requirement that headmit that the [*2]children were present during the chargedincident are unpreserved as those grounds were not advanced as a basis for his motion towithdraw (see People v Delarosa,104 AD3d 956, 956 [2013], lv denied 21 NY3d 1003 [2013]; People v Escalante, 16 AD3d 984,984-985 [2005], lv denied 5 NY3d 788 [2005]). Further, we are unpersuaded bydefendant's contention that the narrow exception to the preservation requirement applies (seePeople v Lopez, 71 NY2d 662, 666 [1988]). Were we to consider the issue, we would findthat defendant's plea was voluntary. The record reflects that defendant acknowledged that he wasfreely and voluntarily entering the guilty plea after discussing the matter with counsel. Although,initially, defendant was reluctant to admit that he restrained the victim, after a brief recess inorder for defendant to speak with counsel, defendant, in response to Supreme Court's inquiries,affirmatively acknowledged that, in an attempt to take a cell phone from the victim, heintentionally and substantially interfered with her liberty to move. Although the court questioneddefendant about the presence of the children during the incident, such information was irrelevantto the crime to which he pleaded guilty and, therefore, it did not impact the voluntariness of theplea.
Next, defendant contends that counsel provided ineffective assistance in various respects. Tothe extent that defendant asserts that counsel failed to advise him or object to the additionalallocution requirements in connection with the endangering the welfare of a child charge, asnoted earlier, this had no bearing on the crime for which defendant pleaded guilty. Defendant'sother allegations cannot be fully determined without considering information that is outside therecord, so those arguments are more properly raised in a motion under CPL article 440. Givenour review of the record, the advantageous plea agreement negotiated by counsel and defendant'sacknowledgment during the plea allocution that he had sufficient time to discuss the matter withcounsel and was satisfied with the services provided, we find that the record fails to supportdefendant's claim that he was deprived of meaningful representation (see People v Pickett, 128 AD3d1275, 1276 [2015], lv denied 26 NY3d 933 [2015]; People v Sylvan, 108 AD3d 869,870 [2013], lv denied 22 NY3d 1091 [2014]; People v Bean, 102 AD3d 1062, 1063 [2013]).
Finally, we have reviewed defendant's contention that the sentence of three years ofprobation was harsh and excessive and find it to be without merit.
Lynch, Devine, Clark and Rumsey, JJ., concur. Ordered that the judgment is affirmed.