Opinion
2769.
Decided February 3, 2004.
Judgment, Supreme Court, Bronx County (William Donnino, J.), rendered June 17, 2002, convicting defendant, upon his plea of guilty, of robbery in the third degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.
Melinda Smith, for Respondent.
William B. Carney, for Defendant-Appellant.
Before: Tom, J.P., Mazzarelli, Saxe, Marlow, JJ.
The court properly exercised its discretion in denying defendant's motion to withdraw his guilty plea, after affording defendant sufficient opportunity to present his claims. The court was thoroughly familiar with the proceedings, including the plea allocution, and the record supports its finding that defendant's claims were unfounded ( see e.g. People v. Frederick, 45 N.Y.2d 520; People v. Clendinen, 240 A.D.2d 236, lv denied 90 N.Y.2d 903).
Defendant was not deprived of his rights to effective assistance of counsel and conflict-free representation by a statement made by counsel during sentencing, since counsel, in his statement, did not act as a witness against defendant and did not take a position adverse to defendant's plea withdrawal motion, which the court had already decided ( see People v. Burgos, 298 A.D.2d 190, lv denied 99 N.Y.2d 580).
Defendant knowingly and intelligently waived his right to appeal, and this waiver encompassed his excessive sentence claim ( see People v. Hidalgo, 91 N.Y.2d 733). Therefore, defendant "elect[ed] to foreclose review of [his] negotiated sentence" ( People v. Seaberg, 74 N.Y.2d 1, 10). In any event, were we to find that defendant did not validly waive his right to appeal, we would perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.