PEOPLE v. DOUGLAS (2007)

Appeal from a judgment of the County Court of Ulster County (Bruhn, J.), rendered July 26, 2005, convicting defendant upon his plea of guilty of the crime of attempted assault in the second degree.

While an inmate at Shawangunk Correctional Facility in Ulster County, defendant was involved in a physical altercation with a correction officer and subsequently indicted on two counts of assault in the second degree.   Defendant pleaded guilty to the reduced charge of attempted assault in the second degree and was sentenced as a second felony offender in accordance with the plea agreement to a prison term of 2 to 4 years, to be served consecutively to a sentence he was then serving.

 Defendant's challenges to the validity of his plea and to the effectiveness of defense counsel's representation as it impacts the voluntariness of his guilty plea are unpreserved for our review given his failure to move to withdraw his plea or vacate the judgment of conviction (see People v. Jones, 30 A.D.3d 633, 816 N.Y.S.2d 573 [2006], lv. denied 7 N.Y.3d 849, 823 N.Y.S.2d 778, 857 N.E.2d 73 [2006] ).   For the same reason, defendant's challenge to the factual sufficiency of the plea is also not preserved for our review (see People v. Masters, 36 A.D.3d 959, 960, 826 N.Y.S.2d 835 [2007] ).   Nevertheless, were we to consider the foregoing, we would find that defendant entered a knowing, voluntary and intelligent plea of guilty.   Defendant's contention that he was rushed and had no choice but to accept the plea is belied by his subsequent responses to County Court's questioning, which demonstrate defendant's understanding of and willingness to enter his plea (see People v. Adams, 26 A.D.3d 597, 598, 811 N.Y.S.2d 129 [2006], lv. denied 7 N.Y.3d 751, 819 N.Y.S.2d 877, 853 N.E.2d 248 [2006];  People v. Victor, 262 A.D.2d 872, 873, 694 N.Y.S.2d 774 [1999], lv. denied 94 N.Y.2d 830, 702 N.Y.S.2d 601, 724 N.E.2d 393 [1999] ).   Furthermore, his allocution sufficiently establishes the essential elements of the crime (see People v. Williams, 35 A.D.3d 971, 825 N.Y.S.2d 322 [2006] ).

 Turning to defendant's claim of ineffective assistance of counsel, given, among other things, the advantageous plea agreement which reduced his sentencing exposure, the record establishes that defendant received meaningful representation (see People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995];  People v. Decker, 32 A.D.3d 1079, 1080, 820 N.Y.S.2d 872 [2006] ).   To the extent that defendant's argument pertains to defense counsel's alleged deficiencies in the preparation and investigation of defendant's case, “such matters are outside the present record and are more properly the subject of a CPL article 440 motion” (People v. Swartz, 23 A.D.3d 917, 918, 805 N.Y.S.2d 675 [2005], lv. denied 6 N.Y.3d 818, 812 N.Y.S.2d 458, 845 N.E.2d 1289 [2006];  see People v. Donaldson, 1 A.D.3d 800, 801, 767 N.Y.S.2d 293 [2003], lv. denied 2 N.Y.3d 739, 778 N.Y.S.2d 465, 810 N.E.2d 918 [2004] ).

We have reviewed defendant's remaining contentions, including his claims that he was improperly denied a copy of his presentence investigation report and that the sentence imposed was harsh and excessive, and find them to be unpersuasive.

ORDERED that the judgment is affirmed.

CARDONA, P.J.

MERCURE, CARPINELLO, MUGGLIN and LAHTINEN, JJ., concur.