PEOPLE v. CORBETT (2008)

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered May 11, 2006, convicting defendant upon his plea of guilty of the crime of reckless endangerment in the first degree.

Pursuant to a negotiated plea agreement, defendant pleaded guilty to reckless endangerment in the first degree in full satisfaction of a multicount indictment, waived his right to appeal and was sentenced, as a second felony offender, to a prison term of 2 to 4 years.   Defendant now appeals.

 Defendant's claim that the plea was not knowingly, intelligently and voluntarily entered into and his challenge to the factual sufficiency of the plea allocution are unpreserved for our review due to his failure to move to withdraw his plea or vacate the judgement of conviction (see People v. Masters, 36 A.D.3d 959, 960, 826 N.Y.S.2d 835 [2007], lv. denied 8 N.Y.3d 925, 834 N.Y.S.2d 515, 866 N.E.2d 461 [2007];  People v. Phillips, 28 A.D.3d 939, 939, 813 N.Y.S.2d 258 [2006], lv. denied 7 N.Y.3d 761, 819 N.Y.S.2d 886, 853 N.E.2d 257 [2006] ).   Further, as nothing in the factual allocution cast doubt on his guilt or otherwise raised concerns regarding the voluntariness of his plea, the exception to the preservation rule is inapplicable (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988];  People v. Saddlemire, 50 A.D.3d 1317, 1318, 855 N.Y.S.2d 749 [2008] ).   In any event, were we to consider these claims, we would find them unavailing.   A review of the plea allocution reveals that County Court thoroughly advised defendant of the rights he was relinquishing by pleading guilty and the consequences thereof, which he confirmed that he understood.   Defendant affirmed that he had adequate time to consider the plea, had discussed the matter with counsel and was pleading guilty of his own volition because he was, in fact, guilty (see People v. Williams, 35 A.D.3d 971, 972, 825 N.Y.S.2d 322 [2006], lv. denied 8 N.Y.3d 928, 834 N.Y.S.2d 519, 866 N.E.2d 465 [2007];  People v. Decker, 32 A.D.3d 1079, 1080, 820 N.Y.S.2d 872 [2006] ).   Further, defendant gave unequivocal affirmative responses to the questions posed by County Court admitting to the underlying facts establishing the elements of the crime to which he pleaded guilty (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];  People v. Williams, 35 A.D.3d at 972, 825 N.Y.S.2d 322).

 Having failed to move to withdraw his plea or vacate the judgment of conviction, defendant's challenge to the effectiveness of counsel's representation as it relates to the voluntariness of his guilty plea is likewise unpreserved (see People v. Lopez, 40 A.D.3d 1276, 1277, 836 N.Y.S.2d 336 [2007];  People v. Jones, 18 A.D.3d 964, 965, 795 N.Y.S.2d 765 [2005], lv. denied 5 N.Y.3d 790, 801 N.Y.S.2d 811, 835 N.E.2d 671 [2005] ) and, in any event, is without merit.   The majority of defendant's claims in this regard concern matters outside the present record and are more properly the subject of a CPL article 440 motion (see 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];  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] ).   Furthermore, given, among other things, the favorable plea agreement negotiated by counsel that reduced defendant's sentencing exposure and defendant's open acknowledgment of his satisfaction with counsel's representation, we conclude that defendant was provided with meaningful representation (see People v. Anderson, 38 A.D.3d 1061, 1063, 831 N.Y.S.2d 582 [2007], lv. denied 8 N.Y.3d 981, 838 N.Y.S.2d 484, 869 N.E.2d 660 [2007];  People v. Decker, 32 A.D.3d at 1080, 820 N.Y.S.2d 872;  People v. Gibson, 21 A.D.3d 577, 578, 799 N.Y.S.2d 340 [2005] ).

We have reviewed defendant's remaining contentions and find them to be unpersuasive.

ORDERED that the judgment is affirmed.

PETERS, J.P.

ROSE, LAHTINEN, KANE and STEIN, JJ., concur.