State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 14, 2016 107139 

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THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

KIP R. BANKER,

Appellant.

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Calendar Date: February 23, 2016

Before: Lahtinen, J.P., Rose, Lynch and Clark, JJ.

__________

Mark Schneider, Plattsburgh, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas

J. Evanovich of counsel), for respondent.

__________

Appeal from a judgment of the County Court of Clinton

County (McGill, J.), rendered January 24, 2013, convicting

defendant upon his plea of guilty of the crimes of attempted

aggravated assault upon a police officer or peace officer (three

counts) and criminal mischief in the second degree.

Defendant was indicted on three counts of attempted

aggravated assault on a police officer or peace officer and

criminal mischief in the second degree. The charges stem from an

incident that occurred on April 18, 2012, when three parole

officers arrived at defendant's home and ordered him to pull over

the tractor he was driving. In response, defendant rammed the

tractor into the vehicle occupied by the parole officers, two of

whom escaped after the impact, and then drove the tractor into

the vehicle again, pushing it to the edge of an embankment with

one officer inside. Defendant drove the tractor in reverse,
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pinning one officer against a tree, and then drove directly in

the direction of the third officer, who managed to avoid being

hit. During the incident, the officers fired numerous shots in

an attempt to stop defendant, although no one was seriously

injured. Defendant ultimately pleaded guilty to the entire

indictment, leaving sentencing to the discretion of County Court. 

The court imposed upon defendant, a second violent felony

offender, concurrent prison terms of 16 years on each attempted

assault conviction and 31⁄2 to 7 years on the criminal mischief

conviction, with five years of postrelease supervision. 

On appeal, defendant's primary contention is that his

guilty plea was the product of mental illness and that the

sentence should be reduced in the interest of justice. 

Significantly, County Court ordered a CPL article 730 competency

examination at the outset, and two psychiatrists concluded that

he was competent to proceed (see CPL 730.10 [1]; People v Mendez,

1 NY3d 15, 19 [2003]). To the extent that defendant challenges

his plea as involuntary, the record does not reflect that he

preserved this claim by making an appropriate postallocution

motion to withdraw his plea, and his remarks during the plea

allocution did not trigger the exception to the preservation

doctrine (see People v Tyrell, 22 NY3d 359, 363-364 [2013];

People v Lopez, 71 NY2d 662, 665 [1988]; People v Guyette, 121

AD3d 1430, 1431 [2014]).

In imposing sentence, County Court fully considered

defendant's health and substance abuse problems, as well as his

failure to address them over many years. In addition, the court

gave weight to his serious criminal history, which includes prior

assaults, and the fact that his violent conduct came very close

to killing the officers. Contrary to defendant's claim, the fact

that, prior to his competency examinations and omnibus motion, he

was offered a plea agreement providing for a lower sentence that

also required an appeal waiver, which he rejected, did not

establish that the later sentence upon his guilty plea to the

entire indictment was unwarranted. Under the circumstances, we

cannot agree that the sentences, which were significantly less

than the maximum potential consecutive sentences for these class

C violent felonies (see Penal Law §§ 70.02 [1] [b]; [3] [b] [ii];

70.25 [2]), were harsh or excessive or that extraordinary
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circumstances warrant a modification in the interest of justice. 

To the extent that defendant argues matters that are outside the

record on appeal, they are more appropriately addressed in a CPL

article 440 motion to vacate (see People v Guyette, 121 AD3d at

1431).

Lahtinen, J.P., Rose, Lynch and Clark, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court