Opinion
2012-09-13
The PEOPLE of the State of New York, Respondent, v. Robert EVERLE, Appellant.
Thomas P. Zugibe, District Attorney, New City (Itamar J. Yeger and Anthony R. Dellicarri of counsel), for respondent. Ostrer Rosenwasser, LLP, Chester (David M. Hoovler of counsel), for appellant.
Thomas P. Zugibe, District Attorney, New City (Itamar J. Yeger and Anthony R. Dellicarri of counsel), for respondent. Ostrer Rosenwasser, LLP, Chester (David M. Hoovler of counsel), for appellant.
PRESENT: LaCAVA, J.P., NICOLAI and LaSALLE, JJ.
Appeal from two judgments of the Justice Court of the Village of West Haverstraw, Rockland County (Kevin S. Russo, J.), rendered August 11, 2009. The judgments convicted defendant, upon jury verdicts, of, respectively, 2 counts and 11 counts of animal cruelty and sentenced him to, among other things, three years of probation including 450 hours of community service, $17,000 in restitution, and a fine of $1,000 per count, for a total of $13,000. The sentence further contained the provision that in the event the monies were not paid within 90 days, defendant was forbidden from “selling or mortgaging any real estate he owns, or divesting [himself] of any assets, until the restitution is paid in full or a judgment is entered.”
ORDERED that the judgments of conviction are modified, on the law, by deleting the provision of the sentence forbidding defendant from selling or mortgaging any real estate he owns or from divesting himself of any of his assets until the restitution is paid in full or a judgment is entered; as so modified, the judgments of conviction are affirmed.
Following a jury trial, defendant was convicted, based on two accusatory instruments, of, respectively, 2 counts and 11 counts of animal cruelty (Agriculture and Markets Law § 353). Defendant was sentenced to, among other things, three years of probation including 450 hours of community service, $17,000 in restitution, and a fine of $1,000 per count, for a total of $13,000. In the event the monies were not paid within 90 days, defendant was forbidden from “selling or mortgaging any real estate he owns, or divesting [himself] of any assets, until the restitution is paid in full or a judgment is entered.” On appeal, defendant contends that he received the ineffective assistance of counsel and that his sentences were harsh and excessive.
To the extent that defendant's contention that he was denied the effective assistance of counsel rests on matters outside the record, it is not reviewable on direct appeal as it implicates matters of trial strategy and/or concerns conversations or decisions not made in the courtroom which are dehors the record on appeal ( see People v. Williams, 34 Misc.3d 142[A], 2012 N.Y. Slip Op. 50089[U], 2012 WL 231262 [App. Term, 2d, 11th & 13th Jud. Dists.2012]; People v. Bregaudit, 31 Misc.3d 152[A], 2011 N.Y. Slip Op. 51136[U], 2011 WL 2506462 [App. Term, 9th & 10th Jud. Dists.2011]; People v. Chaplin, 16 Misc.3d 137[A], 2007 N.Y. Slip Op. 51741[U], 2007 WL 2682973 [App. Term, 2d & 11th Jud. Dists.2007] ). In regard to so much of this contention as was raised in the Justice Court in defendant's CPL 440.10 motion, which motion was denied by order dated July 27, 2010, it is not reviewable since defendant did not obtain leave to appeal from that order ( seeCPL 450.15[1] ).
Insofar as the existing record permits review of defendant's contention that he was denied the effective assistance of counsel ( see People v. Drago, 50 A.D.3d 920, 855 N.Y.S.2d 252 [2008] ), we find that defense counsel provided defendant with meaningful representation in accordance with the New York State standard ( seeN.Y. Const., art. I, § 6; People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981];People v. Johnson, 71 A.D.3d 1048, 896 N.Y.S.2d 878 [2010];People v. Garrett, 68 A.D.3d 781, 888 N.Y.S.2d 908 [2009] ). Moreover, counsel's performance can not be characterized as either deficient or prejudicial to defendant and, thus, was also in accordance with the federal standard ( seeU.S. Const. Amend. VI; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).
It is well settled that where a sentence is within the permissible statutory guidelines it will not be disturbed unless there is a clear showing that the sentencing court abused its discretion or that extraordinary circumstances exist which require a modification of the sentence ( see People v. Dolphy, 257 A.D.2d 681, 685 N.Y.S.2d 485 [1999];People v. Parson, 209 A.D.2d 882, 619 N.Y.S.2d 372 [1994] ). In our opinion, the sentences imposed were neither harsh nor excessive. However, inasmuch as CPL 420.10 does not provide for the imposition of an injunction prohibiting a defendant from selling, mortgaging or divesting himself of property as a penalty for his failure to pay a fine, restitution or reparation, the judgments of conviction are modified by deleting the provision of the sentence forbidding defendant from selling or mortgaging any of his real estate or divesting himself of any assets until the restitution is paid in full.