| People v Washburn |
| 2021 NY Slip Op 01447 [192 AD3d 1267] |
| March 11, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Kenneth K. Washburn, Appellant. |
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.),rendered July 5, 2018, convicting defendant upon his plea of guilty of the crimes of attemptedcriminal sexual act in the second degree and possessing a sexual performance by a child.
In full satisfaction of a six-count indictment, defendant agreed to plead guilty to one count ofattempted criminal sexual act in the second degree and one count of possessing a sexualperformance by a child with the understanding that he would be sentenced to a prison term oftwo years upon his conviction of attempted criminal sexual act in the second degree (followed bya period of postrelease supervision ranging from 5 to 15 years) and to a prison term of1
The People concede that defendant's waiver of the right to appeal is invalid and that he is notprecluded from arguing that the sentence imposed was harsh and excessive. That said, althoughthe underlying crimes represent defendant's first conviction for a sex offense, in view ofdefendant's otherwise lengthy criminal history and the nature of the underlying crimes, we findno extraordinary circumstances or abuse of discretion warranting a reduction of the period ofpostrelease supervision in the interest of justice (see People v Weidow, 150 AD3d 1488, 1488-1489 [2017]).
Defendant's challenge to the voluntariness of his plea—insofar as it is predicated uponthe inadequate amount of time that he purportedly was afforded to review certain Rosariomaterial—was preserved for our review by defendant's motion to withdraw his plea uponthis ground. However, even assuming, without deciding, that the documents atissue—primarily consisting of approximately 200 text messages that defendant engaged inwith an individual posing as a 14-year-old boy—were not included in the discoverymaterials previously provided to each of defendant's various attorneys, the fact remains thatdefendant was either the sender or the recipient of the text messages at issue and, hence, was wellaware of their allegedly exculpatory content long before he entered his guilty plea. Beyond that,the plea colloquy reveals [*2]that defendant acknowledged that hewas alert and understood the nature of the proceeding, that counsel had answered all of hisquestions, that he was satisfied with counsel's services, that he had not been threatened orcoerced into entering his plea and that he was pleading guilty of his own free will (see People v Burnell, 183 AD3d931, 932-933 [2020], lv denied 35 NY3d 1043 [2020]; People v Diggs, 178 AD3d 1203,1204-1205 [2019], lv denied 34 NY3d 1158 [2020]). Under these circumstances, neitherdefendant's allegations nor his otherwise unsupported claim of innocence is sufficient toundermine the voluntariness of his plea (see People v Diggs, 178 AD3d at 1204-1205; People v Ozuna, 177 AD3d 1040,1041 [2019], lv denied 35 NY3d 972 [2020]).
To the extent that defendant now argues that his plea was involuntary because he was notsufficiently apprised of his Boykin rights (see Boykin v Alabama, 395 US 238,243 [1969]), this alleged infirmity is subject to the preservation rule (see People v Williams, 27 NY3d212, 221-222 [2016]; People vSabin, 179 AD3d 1401, 1403 [2020], lv denied 35 NY3d 995 [2020]). Asdefendant did not move to withdraw his plea upon this ground, this contention is unpreserved forour review (see People v Cruz, 186AD3d 932, 933 [2020], lv denied 35 NY3d 1112 [2020]; People v Edwards, 181 AD3d1054, 1055 [2020], lv denied 35 NY3d 1026 [2020]; People v Sabin, 179AD3d at 1403). Accordingly, the judgment of conviction is affirmed.
Lynch, J.P., Clark, Reynolds Fitzgerald and Colangelo, JJ., concur. Ordered that thejudgment is affirmed.