Summary
affirming David's conviction and finding that: David's waiver of the right to appeal was voluntary, knowing and intelligent, and encompassed his present contention that the plea allocution was factually insufficient; that David was fully advised of his rights and that his plea was voluntarily entered with full knowledge of its consequences; and that David was not denied effective assistance of counsel
Summary of this case from Moore v. GuesnoOpinion
KA 02-00081.
Decided April 30, 2004.
Appeal from a judgment of the Wyoming County Court (Mark H. Dadd, J.), rendered November 15, 2001. The judgment convicted defendant, upon his plea of guilty, of coercion in the first degree.
D.J. J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT.
DAVID MOORE, DEFENDANT-APPELLANT PRO SE.
GERALD L. STOUT, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., HURLBUTT, SCUDDER, GORSKI, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of coercion in the first degree (Penal Law § 135.65). The record establishes that defendant's waiver of the right to appeal was voluntary, knowing and intelligent, and that waiver encompasses defendant's present contention that the plea allocution was factually insufficient ( see People v. Clacks, 298 A.D.2d 846, 847, lv denied 99 N.Y.2d 534; People v. Vallejo, 261 A.D.2d 962, lv denied 93 N.Y.2d 1029). Although the further contention of defendant that his plea was not knowingly and voluntarily entered survives his waiver of the right to appeal ( see People v. Seaberg, 74 N.Y.2d 1, 10; Clacks, 298 A.D.2d at 847), that contention is likewise without merit. The record establishes that defendant was fully advised of his rights and that his plea was voluntarily entered with full knowledge of its consequences ( see People v. Hart, 284 A.D.2d 982, lv denied 97 N.Y.2d 641; see generally People v. Fiumefreddo, 82 N.Y.2d 536, 543; People v. Harris, 61 N.Y.2d 9, 16-17).
We reject the further contention of defendant that County Court erred in fixing the amount of restitution to be paid as a term of probation pursuant to Penal Law § 65.10 (2)(g) without conducting a hearing. Defense counsel expressly waived the right to a hearing on the amount of restitution ( see People v. Chambers, 242 A.D.2d 860; People v. Kelly, 238 A.D.2d 938, 939, lv denied 90 N.Y.2d 906). Finally, defendant contends that he was denied effective assistance of counsel. To the extent that his contention survives his plea of guilty ( see People v. Brown, 305 A.D.2d 1068, 1069, lv denied 100 N.Y.2d 579), we conclude that it is lacking in merit. "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. Ford, 86 N.Y.2d 397, 404; see Brown, 305 A.D.2d at 1069).