State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 22, 2015 105778 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

CLIFFORD WILLIAM WARES,

Appellant.

________________________________

Calendar Date: November 14, 2014

Before: Lahtinen, J.P., McCarthy, Egan Jr. and Devine, JJ.

__________

Theodore J. Stein, Woodstock, for appellant, and appellant

pro se.

D. Holley Carnright, District Attorney, Kingston (Joan

Gudesblatt Lamb of counsel), for respondent.

__________

Lahtinen, J.P.

Appeal from a judgment of the County Court of Ulster County

(Williams, J.), rendered January 16, 2013, convicting defendant

upon his plea of guilty of the crimes of disseminating indecent

material to minors in the first degree (two counts) and

disseminating indecent material to minors in the second degree.

Between November 2010 and March 2011, defendant, then 38

years old, allegedly sent to the 13-year-old victim a series of

electronic communications in which he, among other things,

graphically discussed and solicited various forms of sexual

activity with the victim. He also attached numerous photographs

of, among other things, his erect penis, individuals engaged in

various explicit sexual activities, and an individual having sex
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with an animal. He was charged in a 37-count indictment with 31

counts of disseminating indecent material to a minor in the first

degree, five counts of disseminating indecent material to a minor

in the second degree and one count of endangering the welfare of

a child. Defendant was offered a plea to three counts – two

counts of disseminating indecent material to a minor in the first

degree and one count of disseminating indecent material to a

minor in the second degree – in satisfaction of all charges. 

County Court stated that, if he accepted the plea, the maximum

allowable sentences on the three counts would be imposed

consecutively. Defendant accepted the plea, but later moved

before sentencing to withdraw his guilty plea. After a hearing,

County Court denied defendant's motion. He was sentenced

consistent with the plea to consecutive prison terms totaling 9

to 18 years. Defendant appeals.

Defendant contends that the indictment failed to adequately

identify the specific acts constituting the charged crimes. "An

indictment count which incorporates by reference the statutory

provision applicable to the charged crime sufficiently alleges

all of the elements of that crime, rendering the count valid"

(People v Mitchell, 94 AD3d 1252, 1252 [2012], lv denied 19 NY3d

964 [2012] [internal quotation marks and citations omitted]; see

People v D'Angelo, 98 NY2d 733, 735 [2002]). Here, each count of

the indictment cited the pertinent Penal Law section and quoted

from the statute. With regard to the factual allegations of the

indictment, by pleading guilty, defendant waived any challenge to

the specificity of those allegations (see People v Cole, 118 AD3d

1098, 1099-1100 [2014]; People v Downs, 26 AD3d 525, 526 [2006],

lv denied 6 NY3d 847 [2006]).

 

We find no merit in defendant's argument that he did not

receive the effective assistance of counsel. "It is well settled

that 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 Leszczynski, 96 AD3d

1162, 1162 [2012], lv denied 19 NY3d 998 [2012] [internal

quotation marks, brackets and citations omitted]; accord People v

Ford, 86 NY2d 397, 404 [1995]; People v Seuffert, 104 AD3d 1021,

1022 [2013], lv denied 21 NY3d 1009 [2013]). Defendant received
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an advantageous plea in that he faced 37 counts and had exposure

to a much longer sentence than he ultimately received as part of

the plea. Contrary to his current contention that his attorney

pressured him into the plea, defendant stated during the plea

that his attorney had not forced him to take the plea and he

acknowledged that he was satisfied with his attorney's

representation of him. Nothing in the record reflects that the

representation that defendant received – from the commencement of

his criminal case to the completion of his favorable plea – was

ineffective. His assertion that he received ineffective

assistance from the separate attorney who represented him in his

motion to withdraw his plea is unpersuasive, in that, the

purported errors amount to merely second-guessing legitimate

legal strategy (see People v Benevento, 91 NY2d 708, 712-713

[1998]). 

Defendant next asserts that County Court erred in not

allowing him to withdraw his plea. "Whether a defendant should

be permitted to withdraw his or her plea 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 Galvan, 107 AD3d 1058, 1058

[2013], lv denied 21 NY3d 1042 [2013] [citations omitted]; accord

People v Barton, 113 AD3d 927, 928 [2014]). Defendant's claim at

the hearing that he had been under the influence of illegally

obtained prescription drugs at the time of the plea was in direct

conflict to his acknowledgment during the plea that he was not

under the influence of any such substance. Moreover, County

Court had observed defendant and placed on the record at the plea

proceeding that he appeared in full control of his faculties. 

Defendant's claim regarding his use of drugs presented, at most,

a credibility issue that County Court resolved against him (see

People v Torra, 191 AD2d 738, 738-739 [1993], lv denied 81 NY2d

1021 [1993]; see also People v Debberman, 113 AD3d 929, 929

[2014]). With regard to his claim of innocence in his motion,

"[a] defendant is not entitled to withdraw his guilty plea based

on a subsequent unsupported claim of innocence, where the guilty

plea was voluntarily made with the advice of counsel following an

appraisal of all the relevant factors" (People v Haffiz, 19 NY3d

883, 884 [2012] [internal quotation marks and citation omitted]). 

Defendant was fully informed of and acknowledged that he
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understood his various rights, and he voluntarily pleaded guilty

with no claim of innocence. County Court did not abuse its

discretion in denying defendant's motion to withdraw his plea.

In light of defendant's criminal record, the nature of his

current crimes and his receipt of the agreed-upon sentence, we

find no merit in his argument that his sentence was harsh and

excessive. County Court did not abuse its discretion in the

sentence it imposed and there are no extraordinary circumstances

meriting a reduction thereof (see People v Crowe, 111 AD3d 1164,

1165 [2013], lv denied 22 NY3d 1155 [2014]; People v Vanness, 106

AD3d 1262, 1264-1265 [2013], lv denied 22 NY3d 1044 [2013]). The

remaining arguments have been considered and are without merit.

McCarthy, Egan Jr. and Devine, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court