PEOPLE v. SMITH (2008)

Appeal from a judgment of the County Court of Clinton County (Ryan, J.), rendered January 30, 2008, convicting defendant upon his plea of guilty of eight counts of the crime of burglary in the second degree.

In July 2007, defendant was indicted on eight counts of burglary in the second degree and eight counts of petit larceny after he unlawfully entered several residences and took jewelry, cash and cell phones.   He pleaded guilty to eight counts of burglary in the second degree in full satisfaction of the indictment.   Pursuant to the plea agreement, County Court sentenced defendant as a second felony offender to eight concurrent prison terms of eight years, with five years of postrelease supervision.   Defendant now appeals.

 We affirm.   Defendant's contentions that his guilty plea was not voluntary and was factually insufficient and that he was denied the effective assistance of counsel are unpreserved for our review as he failed to move to withdraw the plea or vacate the judgment of conviction (see People v. Lopez, 52 A.D.3d 852, 852-853, 859 N.Y.S.2d 267 [2008];  People v. Edwards, 43 A.D.3d 1227, 1228, 841 N.Y.S.2d 717 [2007], lv. denied 9 N.Y.3d 1005, 850 N.Y.S.2d 394, 880 N.E.2d 880 [2007];  People v. Myricks, 36 A.D.3d 1006, 1006, 826 N.Y.S.2d 520 [2007], lv. denied 8 N.Y.3d 948, 836 N.Y.S.2d 559, 868 N.E.2d 242 [2007] ).   Moreover, no exception to the preservation rule is applicable to the challenge to the voluntariness of the plea as defendant made no statements that were inconsistent with his guilt (see People v. Lopez, 52 A.D.3d at 853, 859 N.Y.S.2d 267;  People v. Ramirez, 42 A.D.3d 671, 672, 839 N.Y.S.2d 327 [2007] ).

 In any event, defendant's claims are without merit.   Inasmuch as County Court fully apprised defendant of the ramifications of his guilty plea during the plea colloquy and defendant both communicated that he understood the ramifications and allocuted to eight counts of the crime of burglary in the second degree, we find that he entered his plea knowingly, intelligently and voluntarily (see People v. Perry, 50 A.D.3d 1244, 1245, 855 N.Y.S.2d 733 [2008], lv. denied 10 N.Y.3d 963, 863 N.Y.S.2d 147, 893 N.E.2d 453 [2008];  People v. Olivieris, 40 A.D.3d 1313, 1314, 836 N.Y.S.2d 367 [2007] ).   Furthermore, contrary to defendant's suggestion, it was not necessary that he “personally recite the facts underlying [his] crimes” (People v. Harris, 51 A.D.3d 1335, 1336, 860 N.Y.S.2d 643 [2008], lv. denied 11 N.Y.3d 789, 866 N.Y.S.2d 615, 896 N.E.2d 101 [2008] ).

 As to defendant's claim that he was denied the effective assistance of counsel, none of his specific claims of inadequacies is supported by the record.   Insofar as defendant received a favorable plea bargain and stated during the colloquy that he had ample opportunity to consult with counsel concerning his plea and that he was satisfied with counsel's representation, we find that defendant was afforded the effective assistance of counsel (see People v. Myricks, 36 A.D.3d at 1007, 826 N.Y.S.2d 520;  People v. Graham, 35 A.D.3d 1039, 1040, 826 N.Y.S.2d 805 [2006], lv. denied 8 N.Y.3d 922, 834 N.Y.S.2d 513, 866 N.E.2d 459 [2007];  People v. Miller, 17 A.D.3d 931, 932, 794 N.Y.S.2d 143 [2005], lvs. denied 5 N.Y.3d 854, 806 N.Y.S.2d 174, 840 N.E.2d 143 [2005], 6 N.Y.3d 756, 810 N.Y.S.2d 424, 843 N.E.2d 1164 [2005] ).   Moreover, defendant's contention that counsel failed to properly investigate his case, including interviewing witnesses, concerns matters outside the record and are more appropriately the subject of a CPL article 440 motion (see People v. Douglas, 38 A.D.3d 1063, 1064, 831 N.Y.S.2d 585 [2007], lv. denied 9 N.Y.3d 843, 840 N.Y.S.2d 769, 872 N.E.2d 882 [2007] ).

 Finally, we have considered defendant's contention that his sentence was harsh and excessive and find it to be unavailing.   Nothing in the record convinces us that County Court abused its discretion nor are there any extraordinary circumstances warranting a reduction of the negotiated sentence (see People v. Edwards, 43 A.D.3d at 1228, 841 N.Y.S.2d 717).

In view of the foregoing, defendant's remaining argument is academic.

ORDERED that the judgment is affirmed.

STEIN, J.

MERCURE, J.P., SPAIN, CARPINELLO and MALONE JR., JJ., concur.