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The People of the State of New York v. Kaleb B. Galloway

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


May 9, 2011

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
KALEB B. GALLOWAY,
APPELLANT.

Appeal from a judgment of the City Court of Beacon, Dutchess County (Timothy G. Pagones, J.), rendered March 7, 2007. The judgment convicted defendant, upon his plea of guilty, of criminal mischief in the fourth degree.

People v Galloway (Kaleb)

Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 9, 2011

PRESENT: NICOLAI, P.J., MOLIA and LaCAVA, JJ

ORDERED that the judgment of conviction is affirmed.

Defendant was originally charged with two felonies, burglary in the second degree (Penal Law § 140.25 [2]) and criminal contempt in the first degree (Penal Law § 215.51 [b] [v]), and two class A misdemeanors, criminal mischief in the fourth degree (Penal Law § 145.00 [1]) and endangering the welfare of a child (Penal Law § 260.10 [1]). The burglary charge was subsequently reduced to the class A misdemeanor of criminal trespass in the second degree (Penal Law § 140.15), and the felony criminal contempt charge was reduced to the class A misdemeanor of criminal contempt in the second degree (Penal Law § 215.50).

On March 7, 2007, defendant appeared with counsel and entered a plea of guilty to the charge of criminal mischief in the fourth degree in satisfaction of all the charges. The City Court sentenced defendant to eight months' imprisonment and issued a five-year order of protection on behalf of the complainant. The eight-month term of imprisonment was ordered to run concurrently with an eight-month sentence imposed for an unrelated offense, obstructing governmental administration in the second degree (Penal Law § 195.05), and defense counsel made a successful application for defendant to receive credit for the time he had already served on that offense.

Defendant's contentions that his plea was not knowingly, voluntarily and intelligently made, and that he was not provided with effective assistance of counsel are unpreserved, as defendant did not move to withdraw his plea or vacate the judgment of conviction on these grounds (see People v Ross, 41 AD3d 870 [2007]; see also People v Thompson, 28 AD3d 498 [2006]). The narrow exception to the preservation requirement is inapplicable, since defendant's statements during the plea allocution neither cast doubt on his guilt nor call the voluntariness of his plea into question (see People v Lopez, 71 NY2d 662, 666 [1988]).

In any event, we note that defendant acknowledged that by pleading guilty he was waiving his right to a trial, that he had had sufficient opportunity to discuss the plea and its consequences with his attorney and that no one had threatened him or made promises to induce his plea. Consequently, the record refutes defendant's claim that defense counsel coerced him to enter a guilty plea and establishes that defendant's plea was knowingly, voluntarily and intelligently made (see People v Wiedmer, 71 AD3d 1067 [2010]; People v Smith, 22 Misc 3d 140[A], 2009 NY Slip Op 50392[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

To the extent that defendant's contentions regarding the alleged ineffective assistance of counsel rest on matters outside the record, they are not reviewable on direct appeal (see People v Ali, 55 AD3d 919 [2008]; People v Drago, 50 AD3d 920 [2008]). Insofar as the contentions are reviewable, we find that defendant received an advantageous plea, that counsel ensured that the order of protection would not extend to defendant's children, and that the record does not cast doubt on the apparent effectiveness of counsel (see People v Garrett, 68 AD3d 781 [2009]). Thus, defendant's counsel provided meaningful representation in accordance with the state standard (see NY Const, art I, § 6; People v Ford, 86 NY2d 397 [1995]; People v Johnson, 71 AD3d 1048 [2010]). Moreover, counsel's performance could not be characterized as either deficient or prejudicial to defendant and, thus, was also in accordance with the federal standard (see US Const Amend VI; Strickland v Washington, 466 US 688 [1984]).

Lastly, since defendant has completed the sentence imposed, the issue of whether the sentence was harsh and excessive has been rendered academic (see People v Russillo, 27 AD3d 493 [2006]; People v Zalamea, 13 Misc 3d 138[A], 2006 NY Slip Op 52219[U] [App Term, 9th & 10th Jud Dists 2006]).

Accordingly, the judgment of conviction is affirmed.

Nicolai, P.J., Molia and LaCava, JJ., concur.

Decision Date: May 09, 2011

20110509

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