Opinion
2014-10-3
The PEOPLE of the State of New York, Respondent, v. Michael N. BONAVITO, Defendant–Appellant.
Andrew C. Lotempio, Buffalo, for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
Andrew C. Lotempio, Buffalo, for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, and PERADOTTO, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal sexual act in the first degree (Penal Law §§ 110.00, 130.50[3] ). Contrary to defendant's contention, County Court did not abuse its discretion in denying his motion to withdrawthe plea ( see People v. Buske, 87 A.D.3d 1354, 1355, 930 N.Y.S.2d 155, lv. denied18 N.Y.3d 882, 939 N.Y.S.2d 751, 963 N.E.2d 128; People v. Sparcino, 78 A.D.3d 1508, 1509, 911 N.Y.S.2d 523, lv. denied16 N.Y.3d 746, 917 N.Y.S.2d 628, 942 N.E.2d 1053). “ ‘Permission to withdraw a guilty plea rests solely within the court's discretion ..., and refusal to permit withdrawal does not constitute an abuse of that discretion unless there is some evidence of innocence, fraud, or mistake in inducing the plea’ ” (People v. Pillich, 48 A.D.3d 1061, 1061, 849 N.Y.S.2d 817, lv. denied11 N.Y.3d 793, 866 N.Y.S.2d 619, 896 N.E.2d 105; see People v. Garner, 86 A.D.3d 955, 955, 926 N.Y.S.2d 796; see generally People v. Said, 105 A.D.3d 1392, 1393, 963 N.Y.S.2d 796, lv. denied21 N.Y.3d 1019, 971 N.Y.S.2d 501, 994 N.E.2d 397). Here, defendant's contention that he was under the influence of prescription medication at the time of the offense “did not constitute a protestation of innocence or the assertion of a defense necessitating withdrawal of the plea” (People v. Legault, 180 A.D.2d 912, 913, 580 N.Y.S.2d 115, lv. denied79 N.Y.2d 1051, 584 N.Y.S.2d 1018, 596 N.E.2d 416; see People v. Di Paola, 143 A.D.2d 487, 488, 532 N.Y.S.2d 606), inasmuch as intent is not an element of the crime of criminal sexual act in the first degree based upon oral sexual conduct with a person under the age of 11 ( see People v. Newton, 8 N.Y.3d 460, 464, 835 N.Y.S.2d 546, 867 N.E.2d 397; People v. Washington, 156 A.D.2d 496, 496–497, 548 N.Y.S.2d 771, lv. denied75 N.Y.2d 925, 555 N.Y.S.2d 44, 554 N.E.2d 81; Di Paola, 143 A.D.2d at 488, 532 N.Y.S.2d 606; see generally § 15.25).
To the extent that defendant's contention that he received ineffective assistance of counsel survives his plea of guilty and valid waiver of the right to appeal ( see People v. Strickland, 103 A.D.3d 1178, 1178, 958 N.Y.S.2d 640), we conclude that it is without 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 [defense] counsel’ ” (Garner, 86 A.D.3d at 956, 926 N.Y.S.2d 796), and that is the case here ( see People v. Jackson, 90 A.D.3d 1692, 1694, 936 N.Y.S.2d 462, lv. denied18 N.Y.3d 958, 944 N.Y.S.2d 487, 967 N.E.2d 712; People v. Gross, 50 A.D.3d 1577, 1577, 855 N.Y.S.2d 398).
Finally, defendant's challenge to the factual sufficiency of the plea allocution is encompassed by his valid waiver of the right to appeal ( see People v. Zimmerman, 100 A.D.3d 1360, 1361, 953 N.Y.S.2d 427, lv. denied20 N.Y.3d 1015, 960 N.Y.S.2d 359, 984 N.E.2d 334; People v. Branch, 49 A.D.3d 1206, 1206–1207, 855 N.Y.S.2d 315, lv. denied10 N.Y.3d 932, 862 N.Y.S.2d 339, 892 N.E.2d 405).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.