State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 18, 2014 104764
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
ALEXEI RAMEY,
Appellant.
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Calendar Date: November 12, 2014
Before: Peters, P.J., Lahtinen, Garry, Rose and Lynch, JJ.
__________
Tara Brower Wells, Latham, for appellant.
Robert M. Carney, District Attorney, Schenectady (Gerald A.
Dwyer of counsel), for respondent.
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Peters, P.J.
Appeal from a judgment of the County Court of Schenectady
County (Giardino, J.), rendered December 2, 2011, convicting
defendant upon his plea of guilty of the crime of attempted
assault in the first degree.
Defendant hired an individual, who happened to be an
undercover police officer, to physically harm his pregnant ex-
girlfriend in order to cause the death of the child she was
carrying. Before the plan was effectuated, he was apprehended by
police and charged in an indictment with a number of crimes. In
satisfaction of the indictment, he pleaded guilty to attempted
assault in the first degree and waived his right to appeal.
Although County Court advised defendant that he could be
sentenced to a determinate prison term of between 3½ and 10 years
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with five years of postrelease supervision, it did not commit to
a particular sentence as part of the plea agreement. Prior to
sentencing, defendant asked to withdraw his guilty plea based
upon the ineffective assistance of counsel, and his attorney
moved to be relieved of representing defendant. County Court
granted counsel's motion and assigned a new attorney to represent
defendant. Upon defendant's request, his new counsel moved to
withdraw defendant's guilty plea. County Court denied the motion
and sentenced defendant to nine years in prison, to be followed
by five years of postrelease supervision. Defendant now appeals.
Initially, we note that defendant's ineffective assistance
of counsel claim, to the extent that it impacts the voluntariness
of his guilty plea, survives his waiver of the right to appeal
and has been preserved by his motion to withdraw his guilty plea
(see People v Howard, 119 AD3d 1090, 1091 [2014], lv denied 24
NY3d 961 [2014]; People v Devino, 110 AD3d 1146, 1147 [2013]).
Turning to the merits, the Court of Appeals has recognized that
the constitutional requirement of effective assistance of counsel
is satisfied "[s]o long as the evidence, the law, and the
circumstances of a particular case, viewed in totality and as of
the time of the representation, reveal that the attorney provided
meaningful representation" (People v Baldi, 54 NY2d 137, 147
[1981]). "'In the context of a guilty plea, a defendant has been
afforded meaningful representation when he or she receives an
advantageous plea and nothing in the record casts doubt on the
apparent effectiveness of counsel'" (People v Sylvan, 108 AD3d
869, 870 [2013], lv denied 22 NY3d 1091 [2014], quoting People v
Carmona, 66 AD3d 1240, 1242 [2009], lv denied 14 NY3d 799 [2010];
see People v Wren, 119 AD3d 1291, 1292 [2014]).
Here, although defendant made complaints about his attorney
during the course of the proceedings, defendant's claims that his
attorney gave inaccurate advice, failed to discuss strategies and
defenses and did not thoroughly investigate defendant's case
concern matters outside the record that are more properly the
subject of a CPL article 440 motion (see People v Wilson, 92 AD3d
981, 982 [2012], lv denied 19 NY3d 1029 [2012]). The record here
discloses that defense counsel engaged in extensive discovery and
motion practice, that included seeking the dismissal of the first
count of the indictment, and advocated vigorously on defendant's
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behalf. Contrary to defendant's claim, it further shows that he
and his attorney reviewed potentially incriminating tapes and
transcripts prior to his entry of the guilty plea, and that his
attorney negotiated a favorable plea considering the severity of
the potential sentence if defendant were convicted of other
counts of the indictment. In sum, under the circumstances
presented, we find that defendant was provided with meaningful
representation (see People v Brown, 115 AD3d 1115, 1116 [2014],
lv denied 24 NY3d 959 [2014]).
As for defendant's motion to withdraw his plea, whether he
should be permitted to do so "'rests within the sound discretion
of the trial court and, generally, such a motion should not be
granted absent a showing of innocence, fraud or mistake in the
inducement'" (People v Barton, 113 AD3d 927, 928 [2014], quoting
People v Galvan, 107 AD3d 1058, 1058 [2013], lv denied 21 NY3d
1042 [2013]; see People v Little, 92 AD3d 1036, 1036 [2012]).
Contrary to defendant's claim, his plea was not rendered
involuntary due to the ineffectiveness of his counsel. Moreover,
the record discloses that defendant understood the ramifications
of pleading guilty, including the rights he was forfeiting, and
was not induced to enter the plea by threats or promises.
Although he disclosed that he was taking pain medication,
defendant assured County Court that this did not interfere with
his ability to understand the proceedings. In view of the
foregoing, County Court did not abuse its discretion in denying
defendant's motion to withdraw his plea without a hearing (see
People v Hoyt, 106 AD3d 1340, 1340 [2013]; People v Smith, 89
AD3d 1328, 1328 [2011]).
Lahtinen, Garry, Rose and Lynch, JJ., concur.
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ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court