PEOPLE v. GORRELL (2009)

Appeal from a judgment of the County Court of Broome County (Cawley Jr., J), rendered August 20, 2008, convicting defendant upon his plea of guilty of two counts of the crime of robbery in the second degree.

Defendant was indicted on two counts of robbery in the second degree for allegedly accosting a clerk in a hotel, stealing cash and the victim's vehicle.   Defendant ultimately pleaded guilty to both counts of the indictment and was sentenced in accordance with a plea agreement to two six-year terms of imprisonment, to run concurrently, and five years of postrelease supervision.   Defendant now appeals and we affirm.

 Defendant's contentions that his plea was not voluntarily or knowingly entered and that he was denied the effective assistance of counsel are not preserved for our review given his failure to move to withdraw his plea or vacate the judgment of conviction (see People v. Creech, 56 A.D.3d 899, 900, 868 N.Y.S.2d 323 [2008];  People v. Sorey, 55 A.D.3d 1063, 1064, 866 N.Y.S.2d 393 [2008], lv. denied 11 N.Y.3d 930, 874 N.Y.S.2d 16, 902 N.E.2d 450 [2009];  People v. Johnson, 54 A.D.3d 1133, 1134, 864 N.Y.S.2d 219 [2008];  People v. Barclay, 1 A.D.3d 705, 705, 766 N.Y.S.2d 636 [2003], lv. denied 1 N.Y.3d 567, 775 N.Y.S.2d 785, 807 N.E.2d 898 [2003] ).   With regard to the plea, “the narrow exception to the preservation rule is inapplicable inasmuch as defendant did not make any statements during his plea allocution which negated an essential element of the crime or otherwise cast significant doubt on his guilt” (People v. Wright, 40 A.D.3d 1314, 1314, 836 N.Y.S.2d 368 [2007] ).

Even if defendant's arguments were preserved, they are without merit.   Defendant's claim that counsel pressured him into pleading guilty to the entire indictment pertains to matters outside the record and is more properly the subject of a CPL article 440 motion (see People v. Cruz, 53 A.D.3d 986, 986, 863 N.Y.S.2d 274 [2008] ).   Nor does the record indicate that defendant's attorney otherwise provided less than meaningful representation (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005];  People v. Hutchinson, 57 A.D.3d 1013, 1014, 868 N.Y.S.2d 807 [2008];  People v. Madison, 31 A.D.3d 974, 975, 818 N.Y.S.2d 364 [2006], lv. denied 7 N.Y.3d 868, 824 N.Y.S.2d 613, 857 N.E.2d 1144 [2006] ).

 Defendant's contention that the sentence was harsh and excessive is also unavailing.   The record reflects that defendant physically assaulted a 65-year-old woman at her place of employment, forceably taking money and her vehicle in the process.   Neither defendant's purported alcohol use nor his expressions of remorse at sentencing qualify as extraordinary circumstances warranting reduction of his sentence (see People v. Elliot, 57 A.D.3d 1095, 1097-1098, 869 N.Y.S.2d 275 [2008], lv. denied 12 N.Y.3d 783, 879 N.Y.S.2d 59, 906 N.E.2d 1093 [2009];  People v. Ryan, 278 A.D.2d 524, 524, 718 N.Y.S.2d 225 [2000], lv. denied 96 N.Y.2d 763, 725 N.Y.S.2d 289, 748 N.E.2d 1085 [2001];  People v. Hearn, 248 A.D.2d 889, 890-891, 669 N.Y.S.2d 984 [1998] ).   Accordingly, we find that County Court's sentence of six years, which was substantially less than the maximum prison term that defendant could have received (see Penal Law § 70.02[3][b] ), was not an abuse of discretion and, in the absence of extraordinary circumstances warranting its reduction, we decline to disturb it (see People v. Sims, 57 A.D.3d 1106, 1109, 868 N.Y.S.2d 832 [2008], lv. denied 12 N.Y.3d 762, 876 N.Y.S.2d 714, 904 N.E.2d 851 [2009] ).

ORDERED that the judgment is affirmed.

STEIN, J.

SPAIN, J.P., LAHTINEN, MALONE JR. and GARRY, JJ., concur.