Opinion
2018-2232 OR CR
04-09-2020
The PEOPLE of the State of New York, Respondent, v. Kevin J. GOULD, Appellant.
Sussman & Associates (Michael H. Sussman of counsel), for appellant. Orange County District Attorney (William C. Ghee of counsel), for respondent.
Sussman & Associates (Michael H. Sussman of counsel), for appellant.
Orange County District Attorney (William C. Ghee of counsel), for respondent.
PRESENT: : BRUCE E. TOLBERT, J.P., THOMAS A. ADAMS, TERRY JANE RUDERMAN, JJ
ORDERED that, on the court's own motion, the notice of appeal from the June 23, 2018 oral order and from the sentence imposed on October 3, 2018 is deemed a valid notice of appeal from the judgment of conviction (see CPL 460.10 [6] ); and it is further,
ORDERED that the judgment of conviction is affirmed.
Defendant was charged with four counts of animal cruelty (Agricultural and Markets Law § 353). On November 15, 2017, he pleaded guilty to one count of animal cruelty in satisfaction of all of the charges. Pursuant to a plea agreement, a restitution hearing would be held if the parties could not agree upon a restitution amount, but, in any event, the amount of restitution would be capped at $32,000. Defendant moved to vacate his plea, in effect pursuant to CPL 220.60, and his motion was orally denied on June 23, 2018. After a restitution hearing, defendant was sentenced on October 3, 2018 to three years' probation, and the court awarded restitution of $15,620, plus a 10 percent surcharge of $1,562, for total restitution of $17,182. On appeal, defendant argues that his motion to vacate his plea should have been granted and that the restitution award violates Penal Law § 60.27 and is unsupported by the record.
The question of whether a defendant should be permitted to withdraw his or her plea rests in the sound discretion of the trial court (see CPL 220.60 [3] ; 340.20 [1]; People v Baret , 11 NY3d 31, 33 [2008] ; People v. Tinsley , 35 NY2d 926, 927 [1974] ). Furthermore, while it is well settled that a defendant is entitled to the effective assistance of counsel at the plea negotiations stage (see People v. Bank , 28 NY3d 131, 137 [2016] ), a defendant has no constitutional right to a plea bargain (see Lafler v. Cooper , 566 US 156, 180 [2012] ; People v. Adams , 20 NY3d 608, 613 [2013] ). In the context of a guilty plea, "when a defendant receives an advantageous plea and the record does not cast doubt on the apparent effectiveness of counsel, defendant is deemed to have been furnished meaningful representation" ( People v. Mayes , 133 AD2d 905, 906 [1987] ; see also People v. Ford , 86 NY2d 397, 404 [1995] ; People v. Griffin , 165 AD3d 1316 [2018] ; People v. Boodhoo , 191 AD2d 448 [1993] ). Here, we find, under the totality of the circumstances presented in the record and under both the federal and New York State standards, that defendant was not denied the effective assistance of counsel (see US Const Amend VI ; NY Const, art I, § 6 ; Strickland v. Washington , 466 US 668 [1984] ; People v. Caban , 5 NY3d 143 [2005] ; People v Benevento , 91 NY2d 708, 712 [1998] ; People v Baldi , 54 NY2d 137 [1981] ). Therefore, it was not an improvident exercise of discretion for the Justice Court to deny defendant's motion to withdraw his guilty plea (see People v Faller , 59 Misc 3d 137[A], 2018 NY Slip Op 50568[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; People v. Finnerty , 58 Misc 3d 145[A], 2017 NY Slip Op 51949[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017] ).
Since it was a specific condition of probation that defendant "pay restitution at a rate determined by the Court," defendant's argument that the restitution award exceeds a statutory limit is without merit (see Penal Law § 60.27 [5] [a] ). Finally, contrary to defendant's argument, the record supports restitution in the amount of $15,620, plus a 10 percent surcharge of $1,562, for a total amount of $17,182.
Accordingly, the judgment of conviction is affirmed.
ADAMS and RUDERMAN, JJ., concur.
TOLBERT, J.P., taking no part.