Opinion
2014-06-12
The PEOPLE of the State of New York, Respondent, v. William A. BROOKS Jr., Appellant.
David E. Woodin, Catskill, for appellant. Paul Czajka, District Attorney, Hudson (H. Neal Conolly of counsel), for respondent.
David E. Woodin, Catskill, for appellant. Paul Czajka, District Attorney, Hudson (H. Neal Conolly of counsel), for respondent.
Before: PETERS, P.J., STEIN, McCARTHY and EGAN JR., JJ.
PETERS, P.J.
Appeal from a judgment of the County Court of Columbia County (Nichols, J.), rendered January 3, 2012, convicting defendant upon his plea of guilty of the crime of assault in the first degree.
Pursuant to a negotiated plea agreement, defendant pleaded guilty to assault in the first degree stemming from an incident in which the victim was beaten with an air rifle. No promises were made with respect to sentencing, although the People and defense counsel jointly recommended that defendant would be sentenced to eight years in prison followed by five years of postrelease supervision. Defendant waived his right to appeal, but preserved his right to appeal if he received a sentence greater than the joint recommendation. County Court departed from the joint recommendation and sentenced defendant, as a second felony offender, to a prison term of 15 years followed by a five-year period of postrelease supervision. Defendant appeals.
Although the parties initially agreed to a joint recommendation of five years in prison, subsequent information came to light that resulted in a joint recommendation of eight years in prison.
While defendant's notice of appeal incorrectly states the date upon which the judgment of conviction was rendered, we exercise our discretion to disregard this misstatement and treat the notice as valid ( seeCPL 460.10[6]; People v. Pimentel, 108 A.D.3d 861, 864 n. 2, 969 N.Y.S.2d 574 [2013],lv. denied21 N.Y.3d 1076, 974 N.Y.S.2d 325, 997 N.E.2d 150 [2013] ).
We find no merit to defendant's contention that County Court failed to acquire personal jurisdiction over him. At his arraignment, defendant was present with counsel, who acknowledged receipt of the indictment, waived a reading of the indictment and entered a plea of not guilty on defendant's behalf. Thus, the statutory requirements for a valid arraignment were met ( seeCPL 210.15 [1]; People v. Oakley, 112 A.D.3d 1064, 1064, 976 N.Y.S.2d 619 [2013],lv. denied22 N.Y.3d 1140, 983 N.Y.S.2d 499, 6 N.E.3d 618 [2014];People v. Buckner, 274 A.D.2d 832, 833, 711 N.Y.S.2d 861 [2000],lv. denied95 N.Y.2d 904, 716 N.Y.S.2d 645, 739 N.E.2d 1150 [2000] ).
Defendant's assertion that he was denied the effective assistance of counsel does not implicate the voluntariness of his plea and, therefore, is foreclosed by his valid waiver of the right to appeal ( see People v. Jean–Francois, 82 A.D.3d 1366, 1367, 918 N.Y.S.2d 389 [2011],lv. denied17 N.Y.3d 797, 929 N.Y.S.2d 105, 952 N.E.2d 1100 [2011];People v. Morales, 68 A.D.3d 1356, 1357, 890 N.Y.S.2d 733 [2009],lv. denied14 N.Y.3d 803, 899 N.Y.S.2d 138, 925 N.E.2d 942 [2010];People v. Cipriani, 61 A.D.3d 1214, 1216, 876 N.Y.S.2d 775 [2009],lv. denied13 N.Y.3d 795, 887 N.Y.S.2d 544, 916 N.E.2d 439 [2009] ). Defendant also contends that the 11–month delay in sentencing was unreasonablepursuant to CPL 380.30(1). Although this claim is not barred by his appeal waiver ( see People v. Campbell, 97 N.Y.2d 532, 534–535, 743 N.Y.S.2d 396, 769 N.E.2d 1288 [2002] ), he failed to preserve the issue for our review by objecting in County Court or moving to dismiss the indictment on that ground ( see People v. Dissottle, 68 A.D.3d 1542, 1543, 893 N.Y.S.2d 649 [2009],lv. denied14 N.Y.3d 799, 899 N.Y.S.2d 133, 925 N.E.2d 937 [2010] ). In any event, the delay was reasonable and provides no basis for dismissal of the indictment, particularly given that it was almost exclusively attributable to defendant's own adjournment requests ( see People v. Campbell, 97 N.Y.2d at 533–534, 743 N.Y.S.2d 396, 769 N.E.2d 1288;People v. Ball, 68 A.D.3d 1148, 1149, 889 N.Y.S.2d 745 [2009];People v. Arroyo, 22 A.D.3d 881, 882, 802 N.Y.S.2d 552 [2005],lv. denied6 N.Y.3d 773, 811 N.Y.S.2d 340, 844 N.E.2d 795 [2006];People v. Hicks, 226 A.D.2d 938, 941, 641 N.Y.S.2d 161 [1996],lv. denied88 N.Y.2d 937, 647 N.Y.S.2d 170, 670 N.E.2d 454 [1996] ).
Finally, although defendant's challenge to the severity of his sentence is not precluded by his appeal waiver ( see People v. O'Connell, 80 A.D.3d 1007, 1007, 915 N.Y.S.2d 698 [2011];People v. Garrand, 22 A.D.3d 959, 960, 802 N.Y.S.2d 789 [2005],lv. denied6 N.Y.3d 812, 812 N.Y.S.2d 452, 845 N.E.2d 1283 [2006] ), we find no merit to his claim that it is harsh and excessive. County Court was not bound by the joint sentencing recommendation and repeatedly reminded defendant of this fact throughout the plea proceedings ( see People v. Thompson, 79 A.D.3d 1457, 1457–1458, 912 N.Y.S.2d 457 [2010];People v. Watson, 61 A.D.3d 1217, 1219, 876 N.Y.S.2d 786 [2009],lv. denied12 N.Y.3d 930, 884 N.Y.S.2d 711, 912 N.E.2d 1092 [2009];People v. Santana, 284 A.D.2d 730, 731, 728 N.Y.S.2d 228 [2001],lv. denied96 N.Y.2d 924, 732 N.Y.S.2d 641, 758 N.E.2d 667 [2001] ). Given the violent nature of defendant's crime, his lack of remorse and the fact that his sentence was well below the statutory maximum, we find no abuse of discretion or extraordinary circumstances that would warrant a reduction of his sentence in the interest of justice ( see People v. Hasenflue, 110 A.D.3d 1108, 1109, 971 N.Y.S.2d 904 [2013],lv. denied22 N.Y.3d 1199, 986 N.Y.S.2d 419, 9 N.E.3d 914 [2014];People v. Brunson, 68 A.D.3d 1551, 1557, 892 N.Y.S.2d 261 [2009],lv. denied15 N.Y.3d 748, 906 N.Y.S.2d 820, 933 N.E.2d 219 [2010];People v. Watson, 61 A.D.3d at 1219, 876 N.Y.S.2d 786;People v. Smith, 288 A.D.2d 693, 693, 732 N.Y.S.2d 917 [2001],lv. denied97 N.Y.2d 761, 742 N.Y.S.2d 622, 769 N.E.2d 368 [2002] ).
ORDERED that the judgment is affirmed.