People v. Gabbidon

• Decision Date: 02 December 2015
• Citation: 134 A.D.3d 736,19 N.Y.S.3d 786 (Mem),2015 N.Y. Slip Op. 08857
• Parties: The PEOPLE, etc., respondent, v. Craig E. GABBIDON, appellant.
• Court: New York Supreme Court — Appellate Division

134 A.D.3d 736

19 N.Y.S.3d 786 (Mem)

2015 N.Y. Slip Op. 08857

The PEOPLE, etc., respondent,

v.Craig E. GABBIDON, appellant.

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

Dec. 2, 2015.

Del Atwell, East Hampton, N.Y., for appellant.

William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyeaof counsel), for respondent.

Opinion

Appeal by the defendant from a judgment of the County Court, Dutchess County (Greller, J.), rendered December 23, 2014, convicting him of criminal sexual act in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the County Court misinformed him of his maximum sentencing exposure were he to proceed to trial is unpreserved for appellate review, since the defendant did not raise this specific ground in his motion to withdraw his plea (see People v. Williams,129 A.D.3d 1000, 13 N.Y.S.3d 442; People v. King,115 A.D.3d 986, 982 N.Y.S.2d 178; People v. Delarosa,104 A.D.3d 956, 960 N.Y.S.2d 915). In any event, the court properly informed the defendant that consecutive sentences could be imposed if he were convicted of the first two counts of the indictment, since each count as charged involved a separate sexual act constituting a distinct offense (see People v. Colon,61 A.D.3d 772, 773, 876 N.Y.S.2d 525; People v. Dallas,31 A.D.3d 573, 574, 817 N.Y.S.2d 535; People v. Gersten,280 A.D.2d 487, 719 N.Y.S.2d 900).

Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel due to his counsel's failure to recognize and address the purported error regarding his maximum sentencing exposure, since, as noted above, the County Court properly informed the defendant of his maximum sentencing exposure (see People v. Cromwell,99 A.D.3d 1017, 952 N.Y.S.2d 302; People v. Royster,40 A.D.3d 885, 886, 835 N.Y.S.2d 732). Furthermore, the record demonstrates that the defendant received an advantageous plea, and nothing in the record casts doubt on the apparent effectiveness of counsel (see People v. Ford,86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265; People v. Modica,64 N.Y.2d 828, 829, 486 N.Y.S.2d 931, 476 N.E.2d 330; People v. Baldi,54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400). There is nothing in the record to support the defendant's claim that counsel's performance was deficient (see Hill v. Lockhart,474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203; Strickland v. Washington,466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674).

The sentence imposed was not excessive (see ...