People v. Gardner

• Decision Date: 13 December 2012
• Citation: 101 A.D.3d 1269,956 N.Y.S.2d 227,2012 N.Y. Slip Op. 08581
• Parties: The PEOPLE of the State of New York, Respondent, v. Clyde M. GARDNER, Appellant.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 1269
956 N.Y.S.2d 227
2012 N.Y. Slip Op. 08581

The PEOPLE of the State of New York, Respondent,
v.
Clyde M. GARDNER, Appellant.

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

Dec. 13, 2012.

[956 N.Y.S.2d 228]

G. Scott Walling, Queensbury, for appellant.

Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), for respondent.

Before: ROSE, J.P., LAHTINEN, SPAIN, KAVANAGH and McCARTHY, JJ.

ROSE, J.P.

[101 A.D.3d 1269]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.

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 2 1/2 to 7 1/2 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 A.D.3d 1643, 1643–1644, 923 N.Y.S.2d 915 [2011] ), 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 A.D.3d 1284, 1285 n. 1, 881 N.Y.S.2d 203 [2009] ). Nonetheless, defendant's contention that his counsel was...