People v Baldwin

2021 NY Slip Op 05050 [197 AD3d 1442]

September 23, 2021

Appellate Division, Third Department

As corrected through Wednesday, November 3, 2021

[*1]

The People of the State of New York,Respondent, v Dakota W. Baldwin, Appellant.

Clea Weiss, Ithaca, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (Zachary S. Persichini of counsel), forrespondent.

Appeal from a judgment of the County Court of Chemung County (Baker, J.), renderedFebruary 25, 2019, convicting defendant upon his plea of guilty of the crime of attempted assaultin the second degree.

Defendant was charged in a single-count indictment with assault in the second degree. Thecharge stemmed from an incident wherein defendant, while on suicide watch in the local jail,assaulted a correction officer who was attempting to remove defendant's bedsheets from his cell.In full satisfaction of that indictment and other pending charges, defendant pleaded guilty to thereduced charge of attempted assault in the second degree with the understanding that he would besentenced to a prison term of 2 to 4 years. County Court sentenced defendant as a second felonyoffender to the contemplated term of imprisonment, and this appeal ensued.

We affirm. Defendant challenges the sentence as harsh and excessive and contends that hewas denied the effective assistance of counsel at sentencing when counsel failed to advocate for amore lenient sentence. The sentence, however, was in accord with a negotiated plea bargain, anddefendant does not seek to vacate the plea. As for counsel's representation, defendant declinedthe opportunity to speak at sentencing, rendering his claim of ineffective assistance unpreserved(see People v Smith, 123 AD3d1233, 1234 [2014], lv denied 25 NY3d 953 [2015]). In any event, counsel noted themitigating factors set forth in the presentence investigation report and encouraged County Courtto honor the bargained-for sentence, a position that hardly constitutes ineffective assistance (see People v Carver, 27 NY3d418, 421 [2016]; People vHockenbury, 190 AD3d 1155, 1157 [2021], lv denied 37 NY3d 957[2021]).

Defendant also urges this Court to invoke its interest of justice jurisdiction to reduce thesentence to a prison term of 11/2 to 3 years (see CPL 470.15). We declineto do so. Although defendant contends that County Court failed to consider his mental healthissues, the record reflects that the court reviewed the presentence investigation report, which, inaddition to setting forth defendant's mental health issues and struggles with substance abuse, alsodetailed defendant's criminal history and the nature of his attack upon the correction officer atissue. We are mindful that defendant was sentenced—as a second felonyoffender—to the maximum term of imprisonment for attempted assault in the seconddegree (see Penal Law §§ 70.06 [3] [e]; [4] [b]; 110.00, 120.05 [3]),but find no extraordinary circumstances or abuse of discretion warranting a reduction of thesentence imposed in the interest of justice (see People v Clark, 159 AD3d 1148, 1148 [2018]).

Lynch, J.P., Clark, Aarons, Pritzker and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment is affirmed.