PEOPLE v. NEWELL

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Supreme Court, Appellate Division, Third Department, New York.

The PEOPLE of the State of New York, Respondent, v. Brian K. NEWELL, Appellant.

Decided: April 27, 2000

Before:  CARDONA, P.J., MERCURE, CARPINELLO, GRAFFEO and MUGGLIN, JJ. Del Atwell, Albany, for appellant. James E. Conboy, District Attorney (Pamela A. Sandy of counsel), Fonda, for respondent.

Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered June 16, 1999, convicting defendant upon his plea of guilty of the crime of sodomy in the third degree.

Defendant waived indictment and pleaded guilty to a superior court information charging him with sodomy in the third degree with the understanding that he would be sentenced to a prison term of 1 1/313 to 4 years.   Defendant waived his right to appeal as part of the plea agreement and was ultimately sentenced to the agreed-upon prison term.   This appeal ensued.

 Initially, a review of the plea allocution reveals that defendant entered a knowing, voluntary and intelligent guilty plea and waiver of his right to appeal and, thus, his challenges to the effectiveness of his counsel during the sentencing hearing and the harshness of his sentence have not been preserved for our review (see, People v. Stamps, 268 A.D.2d 886, 702 N.Y.S.2d 429;  People v. Burg, 262 A.D.2d 796, 692 N.Y.S.2d 243, lv. denied 93 N.Y.2d 1015, 697 N.Y.S.2d 573, 719 N.E.2d 934).   Nonetheless, were we to review defendant's arguments, we would reject them as lacking in merit.   Although defendant received the maximum sentence and has no prior criminal history, the sentence, in accordance with the plea agreement, was within statutory parameters.   Given the lack of extraordinary circumstances warranting judicial intervention and the absence of abuse of discretion, the sentence imposed was neither harsh nor excessive (see, People v. Walker, 266 A.D.2d 727, 727-728, 698 N.Y.S.2d 757, 759;  People v. Brown, 251 A.D.2d 694, 696, 674 N.Y.S.2d 149, lv. denied 92 N.Y.2d 1029, 684 N.Y.S.2d 494, 707 N.E.2d 449).   Moreover, under the circumstances presented here, defense counsel's failure to persuade County Court to impose a more lenient sentence did not amount to ineffective assistance of counsel (see, People v. Johnson, 267 A.D.2d 609, 609-610, 699 N.Y.S.2d 756, 757).

ORDERED that the judgment is affirmed.

CARPINELLO, J.

CARDONA, P.J., MERCURE, GRAFFEO and MUGGLIN, JJ., concur.

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