PEOPLE v. CARR (2011)

Appeal by the defendant from a judgment of the County Court, Dutchess County (Hayes, J.), rendered August 3, 2010, convicting him of attempted criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that his plea of guilty was not knowing, voluntary, and intelligent is unpreserved for appellate review, since he did not move to withdraw the plea on that ground (see CPL 470.05[2];  People v. Toxey, 86 N.Y.2d 725, 726, 631 N.Y.S.2d 119, 655 N.E.2d 160;  People v. Lopez, 71 N.Y.2d 662, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Hernandez–Bautista, 89 A.D.3d 749, 931 N.Y.S.2d 907;  People v. Cooper, 88 A.D.3d 1009, 931 N.Y.S.2d 346;  People v. Shaffer, 81 A.D.3d 989, 917 N.Y.S.2d 267;   People v. Trent, 74 A.D.3d 1370, 903 N.Y.S.2d 236).   In any event, the record demonstrates that the defendant's plea of guilty was entered knowingly, voluntarily, and intelligently (see People v. Harris, 61 N.Y.2d 9, 471 N.Y.S.2d 61, 459 N.E.2d 170).

To the extent that the defendant's claim of ineffective assistance of counsel is reviewable on direct appeal, his contention is without merit (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Contrary to the defendant's contention, his attorney made a pretrial omnibus motion on his behalf and negotiated an advantageous plea agreement that substantially limited his exposure to imprisonment (see People v. Browning, 44 A.D.3d 1067, 1067–1068, 844 N.Y.S.2d 405;  People v. Reels, 17 A.D.3d 488, 489, 795 N.Y.S.2d 241;  People v. Torres, 302 A.D.2d 481, 754 N.Y.S.2d 894).   Accordingly, defense counsel provided meaningful representation.

Since the defendant pleaded guilty with the understanding that he would receive the sentence which was thereafter actually imposed, he has no basis now to complain that the sentence was excessive (see People v. Bunn, 79 A.D.3d 1143, 914 N.Y.S.2d 907;  People v. Kazepis, 101 A.D.2d 816, 475 N.Y.S.2d 351).