        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

461
KA 10-02425
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

THOMAS A. CULVER, JR., DEFENDANT-APPELLANT.


BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered July 6, 2010. The judgment convicted defendant,
upon his plea of guilty, of grand larceny in the fourth degree.

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

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of grand larceny in the fourth degree (Penal Law §
155.30 [1]), defendant contends that he was denied effective
assistance of counsel. We reject that contention. Defendant’s
contention “ ‘survives his guilty plea only to the extent that
defendant contends that his plea was infected by the alleged
ineffective assistance’ ” (People v Garner, 86 AD3d 955, 956; see
People v Gleen, 73 AD3d 1443, 1444, lv denied 15 NY3d 773). “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
[defense] counsel” (People v Ford, 86 NY2d 397, 404), and upon our
review of the record we conclude that defendant was afforded such
meaningful representation here. “ ‘To the extent that defendant
contends that defense counsel was ineffective because he coerced
defendant into pleading guilty, that contention is belied by
defendant’s statement during the plea colloquy that the plea was not
the result of any [force] or coercion’ ” (Garner, 86 AD3d at 956), and
by his statement “that he was satisfied with the representation of
defense counsel” (People v Strasser, 83 AD3d 1411, 1411). Under the
circumstances of this case, we reject defendant’s contention that
defense counsel was ineffective when defense counsel allegedly induced
defendant to plead guilty by misinforming him of his sentence exposure
(see generally Ford, 86 NY2d at 404). Misinformation as to the
possible sentence to which a defendant is exposed “is [a] factor which
must be considered by the court [in determining whether a plea was
                                 -2-                           461
                                                         KA 10-02425

knowing, intelligent and voluntary and thus whether the plea was
infected by the misinformation, rendering defense counsel
ineffective], but it is not, in and of itself, dispositive” (People v
Garcia, 92 NY2d 869, 870; see People v Morrison, 78 AD3d 1615, 1616,
lv denied 16 NY3d 834). Indeed, “[w]hether a plea was knowing,
intelligent and voluntary is dependent upon a number of factors[,]
including the nature and terms of the agreement, the reasonableness of
the bargain, and the age and experience of the accused” (Garcia, 92
NY2d at 870; see Morrison, 78 AD3d at 1616). To the extent that
defendant’s contention that he was denied effective assistance of
counsel is based on matters outside the record, it must be raised by
way of a motion pursuant to CPL article 440 (see People v Johnson, 81
AD3d 1428, 1428, lv denied 16 NY3d 896; People v Joyner, 19 AD3d 1129,
1130). Finally, the sentence is not unduly harsh or severe.




Entered:   April 20, 2012                      Frances E. Cafarell
                                               Clerk of the Court
