People v. Boyde

Mar 19, 2010
Versions:71 A.D.3d 1442
897 N.Y.S.2d 570

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of two counts of insurance fraud in the third degree (Penal Law § 176.20). Defendant contends that his plea was coerced because Supreme Court threatened to impose a greater sentence in the event of a conviction following a trial. We reject that contention. Although it is well settled that “[a] defendant may not be induced to plead guilty by the threat of a heavier sentence if he [or she] decides to proceed to trial” (People v Christian [appeal No. 2], 139 AD2d 896, 897 [1988], lv denied 71 NY2d 1024 [1988]), the statements of the court at issue, made during a pre-plea proceeding, “amount to a description of the range of the potential sentences” rather than impermissible coercion (People v Flinn, 60 AD3d 1304, 1305 [2009]). “The fact that defendant may have pleaded guilty to avoid receiving a harsher sentence does not render his plea coerced” (People v Villone, 302 AD2d 866 [2003], lv denied 4 NY3d 768 [2005]).

Even assuming, arguendo, that defendant preserved for our review his challenge to the factual sufficiency of the plea allocution (see People v Lopez, 71 NY2d 662, 665 [1988]), we conclude that it is without merit. Defendant further contends that he was denied effective assistance of counsel. “[T]o the extent that defendant‘s contention is based on defense counsel‘s alleged failure to investigate certain facts of the case, it ‘is unreviewable on direct appeal [because] it involves matters outside the record’ ” (People v Washington, 39 AD3d 1228, 1230 [2007], lv denied 9 NY3d 870 [2007]; see People v Sharpe, 295 AD2d 957, 958 [2002]). Further, to the extent that defendant‘s contention with respect to the remaining alleged errors of defense counsel is not forfeited by the plea (see People v Santos, 37 AD3d 1141 [2007], lv denied 8 NY3d 950 [2007]), it is lacking in merit. The record establishes that defendant received an advantageous plea agreement and nothing in the record suggests that defense counsel‘s representation was anything less than meaningful (see People v Balanean, 55 AD3d 1353 [2008], lv denied 11 NY3d 895 [2008]; see generally People v Ford, 86 NY2d 397, 404 [1995]). Present—Scudder, P.J., Peradotto, Carni, Green and Gorski, JJ.