Opinion
2014-03-21
The PEOPLE of the State of New York, Respondent, v. MARCO A.C., Defendant–Appellant.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant. Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant. Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS AND VALENTINO, JJ.
MEMORANDUM:
Defendant appeals from a youthful offender adjudication convicting him, upon his plea of guilty, of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25[2] ). Defendant's contention regarding the voluntariness of his plea is not preserved for our review because he did not move to withdraw his plea or to vacate the adjudication on that ground ( see People v. Rosado, 70 A.D.3d 1315, 1315–1316, 894 N.Y.S.2d 703,lv. denied14 N.Y.3d 892, 903 N.Y.S.2d 780, 929 N.E.2d 1015). Contrary to defendant's contention, this case does not fall within the rare exception to the preservation requirement because nothing in the plea allocution calls into question the voluntariness of the plea or casts “significant doubt” upon his guilt ( People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;see People v. Cubi, 104 A.D.3d 1225, 1226, 960 N.Y.S.2d 585,lv. denied21 N.Y.3d 1003, 971 N.Y.S.2d 254, 993 N.E.2d 1277).
Defendant failed to preserve for our review his contention that County Court erred in ordering restitution without conducting a hearing ( see People v. Robinson, 112 A.D.3d 1349, 1350, 977 N.Y.S.2d 529;People v. Baker, 57 A.D.3d 1500, 1500, 869 N.Y.S.2d 843), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( seeCPL 470.15[3][c] ). To the extent that defendant's contention that he was denied effective assistance of counsel survives his plea of guilty ( see People v. Robinson, 39 A.D.3d 1266, 1267, 833 N.Y.S.2d 814,lv. denied9 N.Y.3d 869, 840 N.Y.S.2d 898, 872 N.E.2d 1204), we reject that contention. The record establishes that defendant received “an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel” ( People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265).
It is hereby ORDERED that the adjudication so appealed from is unanimously affirmed.