Opinion
2013-03-28
The PEOPLE of the State of New York, Respondent, v. Thomas WHITE, Also Known as P, Appellant.
Michael P. Graven, Owego, for appellant, and appellant pro se. P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), for respondent.
Michael P. Graven, Owego, for appellant, and appellant pro se. P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), for respondent.
Before: MERCURE, J.P., ROSE, STEIN and SPAIN, JJ.
Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered May 13, 2010, convicting defendant upon his plea of guilty of the crime of assault in the first degree.
Defendant pleaded guilty to assault in the first degree in full satisfaction of a nine-count indictment arising out of his role in the abduction and brutal beating of a young woman. In accordance with the plea agreement, defendant was sentenced as a second felony offender to a prison term of 22 years followed by five years of postrelease supervision. Defendant now appeals.
Upon review of the record before us, we find that defendant did not effect a valid waiver of his right to appeal ( see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];People v. Lewis, 39 A.D.3d 1025, 1025, 833 N.Y.S.2d 757 [2007] ). Nonetheless, defendant's arguments regarding the voluntariness of his plea and the ineffective assistance of his trial counsel have not been properly preserved for our review by a motion to withdraw his plea ( see People v. Lopez, 52 A.D.3d 852, 853, 859 N.Y.S.2d 267 [2008];People v. McEnteggart, 26 A.D.3d 643, 643, 809 N.Y.S.2d 292 [2006],lv. denied7 N.Y.3d 759, 819 N.Y.S.2d 885, 853 N.E.2d 256 [2006] ). Additionally, the exception to the preservation rule is not applicable as defendant made no statements during his plea that were inconsistent with his guilt ( see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). While defendant contends in his pro se brief that he also made a CPL 440.10 motion, that motion is not before us on this appeal.
In any event, the plea minutes reflect that defendant's plea was knowing, voluntary and intelligent and that he was afforded meaningful representation ( see People v. Getter, 52 A.D.3d 1117, 1117–1118, 860 N.Y.S.2d 320;People v. White, 47 A.D.3d 1062, 1063, 849 N.Y.S.2d 699;People v. Edwards, 43 A.D.3d 1227, 1228, 841 N.Y.S.2d 717 [2007],lv. denied9 N.Y.3d 1005, 850 N.Y.S.2d 394, 880 N.E.2d 880 [2007] ). Defendant was advised of the rights he forfeited by pleading guilty, stated that he understood those rights and that he had adequate time to consult with his attorney and admitted committing the assault as charged in the indictment. Additionally, defendant confirmed that he was satisfied with counsel's representation. Indeed, counsel was able to secure a very favorable plea agreement considering the number and severity of the crimes charged.
While defendant's guilty plea did not waive his current claim regarding Albany County's geographic jurisdiction over this assault ( see People v. Kellerman, 102 A.D.2d 629, 630, 479 N.Y.S.2d 815 [1984] ), defendant's claim lacks merit. During the plea colloquy, defendant admitted that, as charged in count five of the indictment, he abducted the victim in Albany County and caused serious physical injury to her in furtherance of a felony, i.e., a kidnapping, in violation of Penal Law § 120.10(4). As one or more elements of this crime occurred in Albany County, it was a proper venue for the prosecution of this crime ( seeCPL 20.40[1]; People v. Singh, 30 A.D.3d 639, 639, 817 N.Y.S.2d 398 [2006] ). Thus, counsel cannot be deemed ineffective for failing to move to dismiss this count of the indictment on this ground.
Notably, venue issues are waivable ( see People v. Greenberg, 89 N.Y.2d 553, 556, 656 N.Y.S.2d 192, 678 N.E.2d 878 [1997];People v. McLaughlin, 80 N.Y.2d 466, 471, 591 N.Y.S.2d 966, 606 N.E.2d 1357 [1992];People v. Lowen, 100 A.D.2d 518, 519, 473 N.Y.S.2d 22 [1984] ).
Finally, despite defendant's age and difficult upbringing, we are not persuaded that the negotiated sentence was harsh or excessive given the brutal and senseless nature of the crime ( see People v. Eggsware, 89 A.D.3d 1277, 1277, 932 N.Y.S.2d 732 [2011];People v. Means, 35 A.D.3d 975, 976–977, 824 N.Y.S.2d 821 [2006],lv. denied8 N.Y.3d 948, 836 N.Y.S.2d 558, 868 N.E.2d 241 [2007] ). We have considered defendant's remaining contentions and find them to be without merit.
ORDERED that the judgment is affirmed.