Calendar Date: September 10, 2013
Stanley Walker, Loudonville, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Before: Lahtinen, J.P., Stein, Spain and Egan Jr., JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered September 27, 2010, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree.
Defendant pleaded guilty to criminal possession of a weapon in the second degree in full satisfaction of an eight-count indictment charging him with criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, menacing in the first degree (two counts), assault in the third degree and endangering the welfare of a child (three counts). Pursuant to the plea terms, the People agreed not to pursue certain additional charges against defendant and County Court committed to a prison sentence of 10 years followed by five years of postrelease supervision. Defendant was sentenced as agreed and he now appeals.
Initially, the record does not reflect that defendant preserved his challenge to the voluntariness and factual sufficiency of his plea by making a motion to withdraw his plea or vacate the judgment of conviction (see People v Borden, 91 A.D.3d 1124, 1125 , lv denied 19 N.Y.3d 862 ; People v Davis, 84 A.D.3d 1645, 1645 , lv denied 17 N.Y.3d 815 ). Moreover, the narrow exception to the preservation requirement was not triggered here, as defendant did not make any statements during the plea colloquy that were inconsistent with his guilt or otherwise called into question the voluntariness of his plea (see People v Teele, 92 A.D.3d 972, 972 ; People v Davis, 84 A.D.3d at 1646). Defendant's related claim that he was denied the effective assistance of counsel is likewise unpreserved for our review and, in any event, the record does not support this claim (see People v Borden, 91 A.D.3d at 1125-1126; People v Gomez, 72 A.D.3d 1337, 1338 ). Finally, defendant's contention that his agreed-upon sentence was harsh and excessive is unpersuasive given his criminal history and the violent nature of his conduct, which was witnessed by his children (see People v Jackson, 67 A.D.3d 1067, 1069 , lv denied 14 N.Y.3d 801 ; People v Milstead, 61 A.D.3d 1179, 1179 ). Likewise lacking in merit is his claim that fees and surcharges were improperly imposed (see People v Hoti, 12 N.Y.3d 742, 743 ; People v Overton, 105 A.D.3d 1072, 1073 ).
Lahtinen, J.P., Stein and Egan Jr., JJ., ...