Opinion
July 21, 1994
Appeal from the County Court of Ulster County (Vogt, J.).
Defendant pleaded guilty to the crime of burglary in the first degree and was sentenced as a second felony offender to a term of imprisonment of 4 1/2 to 9 years. On this appeal, defendant contends that he should be allowed to withdraw his guilty plea and that the indictment should be dismissed based upon prosecutorial misconduct and ineffective assistance of counsel.
Defendant first contends that he was subjected to various instances of prosecutorial misconduct, including coercion in obtaining defendant's inculpatory statements and denial of his right to counsel. A review of the plea colloquy reveals that defendant's guilty plea was knowing, voluntary and intelligent. By pleading guilty and thereby admitting the commission of the crime charged, defendant has forfeited appellate review of his contention that he was subjected to preindictment prosecutorial misconduct (see, People v. Di Raffaele, 55 N.Y.2d 234, 240; People v. D'Angelo, 145 A.D.2d 783, lv denied 73 N.Y.2d 976, 1013; People v. Persico, 131 A.D.2d 603, lv denied 70 N.Y.2d 716). In any event, defendant's decision to plead guilty prior to hearings on his suppression motions relating to this misconduct precluded the making of a record, thus foreclosing appellate review (see, People v. Fernandez, 67 N.Y.2d 686).
Defendant also contends that he was denied the effective assistance of counsel by defense counsel's failure to pursue pretrial hearings to suppress evidence and to dismiss the indictment, and the failure of counsel to adequately confer with him. Although defendant's contention that he was denied the effective assistance of counsel survives his guilty plea (see, People v. Rosado, 199 A.D.2d 833, 834; People v. Ferguson, 192 A.D.2d 800, lv denied 82 N.Y.2d 717), defendant has failed on this record to demonstrate that defense counsel had no strategic or other legitimate explanations to forego pursuit of the "colorable" claims alleged so as to rebut the presumption that counsel acted competently (see, People v. Rivera, 71 N.Y.2d 705, 709). In addition, defendant received the most lenient sentence possible under the facts of this case. Where, as here, a defendant receives an advantageous plea and the record contains no evidence of ineffectiveness, a defendant is deemed to have received meaningful representation (see, People v. Boodhoo, 191 A.D.2d 448; People v. Lynch, 156 A.D.2d 884, lv denied 75 N.Y.2d 921).
Defendant has similarly failed to present evidence to support his claim that defense counsel did not adequately confer with him and, in fact, in the plea proceeding defendant affirmatively stated that he was satisfied with the representation he had received. We therefore conclude on this record that defendant's contention is meritless. Further consideration of these issues on this direct appeal is precluded by the lack of a sufficient record (see, People v. Perez, 198 A.D.2d 540, lv denied 82 N.Y.2d 923, 929; People v. Pardoe, 147 A.D.2d 820).
White, Weiss, Yesawich Jr. and Peters, JJ., concur. Ordered that the judgment is affirmed.