State of New York Supreme Court, Appellate Division Third Judicial Department
December 13, 2012
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
CLYDE M. GARDNER, APPELLANT.
Appeal from a judgment of the County Court of Franklin County (Main Jr., J.), rendered September 28, 2011, convicting defendant upon his plea of guilty of the crime of conspiracy in the second degree.
The opinion of the court was delivered by: Rose, J.P.
MEMORANDUM AND ORDER
Calendar Date: November 14, 2012
Before: Rose, J.P., Lahtinen, Spain, Kavanagh and McCarthy, JJ.
Defendant was indicted on a single count of conspiracy in the second degree based upon allegations that he conspired to hire an acquaintance to murder the mother of his child, and he was initially offered a plea to a reduced felony count with a sentence of no more than 21/2 to 71/2 years. He rejected that offer and defense counsel thereafter, among other things, entered into a stipulation in lieu of motions providing for open file discovery. Ultimately, a new plea bargain was offered requiring defendant to plead guilty to the charged crime and waive his right to appeal all matters other than the sentence and constitutional issues. In exchange, the People agreed to recommend a sentence of 3 to 9 years in prison and County Court committed to imposing a prison term of no greater than 5 to 15 years. Defendant agreed to those terms and waived his right to appeal. Thereafter, in accordance with the plea agreement, defendant was sentenced to 5 to 15 years in prison. He now appeals.
According to defendant, he was denied the effective assistance of counsel, and his guilty plea and appeal waiver were the result of this claimed ineffectiveness. While defendant's assertion would normally be unpreserved for our review in light of the absence of proof in the record before us that he made a motion to withdraw his plea or vacate the judgment of conviction (see People v Walker, 84 AD3d 1643, 1643--1644 ), we conclude that defendant's claim at sentencing that he felt counsel had not adequately explained the earlier plea offer to him sufficiently "constituted a motion to vacate his plea and, therefore, preserved this claim for the purposes of appeal" (People v Walley, 63 AD3d 1284, 1285 n 1 ). Nonetheless, defendant's contention that his counsel was ineffective for "fail[ing] to take the steps necessary to hold open the existing settlement offer through the conclusion of discovery and motion" has no support in this record. To the contrary, the only information before us concerning the reason the prior offer was allowed to expire comes from defendant's own statement at sentencing whereby he indicated that it was his decision to reject the offer based upon a television program he viewed in jail, as well as advice he received from other inmates who told him that he would get a better plea offer if he waited. Thus, the record proof does not support the claim that defendant was not afforded meaningful representation or that counsel failed to fully explain the consequences of declining the initial offer (see People v Volfson, 69 AD3d 1123, 1124 ). To the extent that defendant's claims could be otherwise demonstrated by proof outside the record, they would more adequately be addressed by way of a CPL article 440 motion (see id. at 1125).
Lastly, upon review of defendant's preserved claim that his sentence is harsh and excessive, "we find no abuse of discretion nor any extraordinary circumstances warranting a reduction of the sentence in the interest of justice" (People v Herring, 74 AD3d 1579, 1580 ; see People v Elder, 89 AD3d 1278, 1279 , lv denied 18 NY3d 923 ).
Lahtinen, Spain, Kavanagh and McCarthy, JJ., concur.
ORDERED that the judgment is affirmed.
Robert D. Mayberger Clerk of the Court
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