Opinion
KA 03-01280.
Decided June 14, 2004.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.), rendered March 14, 2003. The judgment convicted defendant, upon his plea of guilty, of attempted assault in the first degree.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: HURLBUTT, J.P., SCUDDER, GORSKI, MARTOCHE, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted assault in the first degree (Penal Law §§ 110.00, 120.10). Although defendant contends that Supreme Court erred in denying his motion to withdraw the guilty plea, defendant did not in fact make such a motion. Defendant wrote a letter to the court prior to sentencing in which he protested his innocence but he did not request permission to withdraw his plea, nor did the court construe the letter as making such a request. By failing to move to withdraw the plea or to vacate the judgment of conviction, defendant failed to preserve for our review his contention that he did not knowingly, intelligently and voluntarily enter his guilty plea ( see People v. Perry, 4 A.D.3d 618; People v. Thompson, 4 A.D.3d 785; People v. Harriott, 277 A.D.2d 987, lv denied 97 N.Y.2d 682; People v. Figueroa-Guzman, 273 A.D.2d 912). In any event, his contention is without merit. Defendant stated during the plea colloquy that he was entering an Alford plea in order to avoid the risk of a lengthier sentence if he proceeded to trial ( see People v. Casco, 4 A.D.3d 742; People v. Stewart, 307 A.D.2d 533, 534). The People set forth the proof they intended to offer at trial and thereby presented the requisite strong evidence of defendant's guilt ( see People v. Clemons, 299 A.D.2d 666, 667, lv denied 99 N.Y.2d 627; People v. Clacks, 298 A.D.2d 846, 847, lv denied 99 N.Y.2d 534). Here, "[t]he record shows that defendant was advised of his rights and that his Alford plea ( see, North Carolina v. Alford, 400 U.S. 25) was knowingly, intelligently and voluntarily entered with a full understanding of its consequences" ( People v. Alfieri, 201 A.D.2d 935, 935, lv denied 83 N.Y.2d 908; see Figueroa-Guzman, 273 A.D.2d at 912).
"The contention that defendant was denied effective assistance of counsel does not survive his plea because there is no indication in the record of any ineffectiveness affecting the plea" ( Thompson, 4 A.D.3d at 785-786). In any event, defendant received meaningful representation ( see People v. Baldi, 54 N.Y.2d 137, 147). "In the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives 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).