Opinion
06-16-2017
The PEOPLE of the State of New York, Respondent, v. Rayon L. WONG, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester, Trevett Cristo P.C. (Eric M. Dolan of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Scott Myles of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester, Trevett Cristo P.C. (Eric M. Dolan of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of Counsel), for Respondent.
PRESENT: WHALEN, P.J., SMITH, CARNI, CURRAN, AND SCUDDER, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of insurance fraud in the fourth degree ( Penal Law § 176.15 ) and criminal possession of a forged instrument in the second degree ( § 170.25 ). Defendant moved to withdraw his plea on the ground that he was denied effective assistance of counsel, and he contends that County Court erred in denying his motion. As a preliminary matter, we note that defendant's contention survives his valid waiver of the right to appeal " ‘only insofar as he contends that his plea was infected by the allegedly ineffective assistance and that he entered the plea because of his attorney's allegedly poor performance’ " ( People v. Strickland, 103 A.D.3d 1178, 1178, 958 N.Y.S.2d 640 ; see People v. Montgomery, 63 A.D.3d 1635, 1635–1636, 880 N.Y.S.2d 811, lv. denied 13 N.Y.3d 798, 887 N.Y.S.2d 548, 916 N.E.2d 443 ). We conclude that the court properly denied the motion.
"The decision to permit a defendant to withdraw a guilty plea rests in the sound discretion of the court" ( People v. Smith, 122 A.D.3d 1300, 1301–1302, 995 N.Y.S.2d 881, lv. denied 25 N.Y.3d 1172, 15 N.Y.S.3d 303, 36 N.E.3d 106 [internal quotation marks omitted]; see People v. Frederick, 45 N.Y.2d 520, 524–525, 410 N.Y.S.2d 555, 382 N.E.2d 1332 ), and "a guilty plea will be upheld as valid if it was entered voluntarily, knowingly and intelligently" ( People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 ; see People v. Moissett, 76 N.Y.2d 909, 910–911, 563 N.Y.S.2d 43, 564 N.E.2d 653 ). Here, defendant's claim that he pleaded guilty because of ineffective assistance of counsel is not supported by the record, which reveals that defendant communicated adequately with defense counsel, that he received a favorable plea bargain, and that the court properly determined that the plea was knowing and voluntary after holding a hearing on defendant's motion (see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 ). We likewise reject defendant's claim that he was denied effective assistance of counsel based on defense counsel's alleged failure to advise him of the immigration consequences of the guilty plea. The record reveals that both the court and defense counsel advised defendant of potential immigration consequences of his plea, including the risk of deportation, as required by Padilla v. Kentucky , 559 U.S. 356, 374, 130 S.Ct. 1473, 176 L.Ed.2d 284 ; see People v. Lawrence, 148 A.D.3d 1472, 1474, 52 N.Y.S.3d 505 ; People v. Dealmeida, 124 A.D.3d 1405, 1406, 1 N.Y.S.3d 704. We thus conclude that the guilty plea was knowingly, voluntarily, and intelligently entered (see Fiumefreddo, 82 N.Y.2d at 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 ), and that the court providently exercised its discretion in denying the motion.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.