MONROE, JIMMY L., PEOPLE v ( 2012 )


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  •          SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    998
    KA 09-01625
    PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND MARTOCHE, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    JIMMY L. MONROE, DEFENDANT-APPELLANT.
    TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
    COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Monroe County Court (John R.
    Schwartz, A.J.), rendered January 28, 2009. The judgment convicted
    defendant, upon his plea of guilty, of criminal possession of a weapon
    in the second degree.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously affirmed.
    Memorandum: On appeal from a judgment convicting him upon his
    plea of guilty of criminal possession of a weapon in the second degree
    (Penal Law § 265.03 [3]), defendant contends that County Court abused
    its discretion in denying his motion to withdraw his guilty plea on
    the ground that the plea was not knowing, voluntary, and intelligent
    based, inter alia, on the court’s failure to inform him of certain
    constitutional rights set forth in Boykin v Alabama (
    395 US 238
    , 243).
    We reject that contention. We note at the outset that, although
    defendant is correct that the court did not address certain rights
    that he waived by pleading guilty, the court was not required to do so
    (see People v Harris, 61 NY2d 9, 16, 18-19; People v Johnson, 60 AD3d
    1496, 1496, lv denied 12 NY3d 926). Instead, “[t]he seriousness of
    the crime, the competency, experience and actual participation by
    counsel, the rationality of the ‘plea bargain[,’] and the pace of the
    proceedings in the particular criminal court are among the many
    factors which the Trial Judge must consider in exercising discretion”
    during a plea colloquy (Harris, 61 NY2d at 16, citing People v Nixon,
    21 NY2d 338, 353, cert denied sub nom. Robinson v New York, 
    393 US 1067
    ).
    Contrary to defendant’s contention, we conclude that the plea was
    knowing, voluntary, and intelligent (see generally Harris, 61 NY2d at
    16-19), and thus the court properly denied his motion. The record
    establishes that the court properly exercised its discretion during
    -2-                           998
    KA 09-01625
    defendant’s plea colloquy in light of defendant’s criminal history,
    his representation by counsel, and his statements during the plea
    colloquy. Defendant had pleaded guilty five times in New York prior
    to the current case, thus indicating that defendant was familiar with
    the plea process and aware of the rights that he waived by pleading
    guilty (see Nixon, 21 NY2d at 350). Defendant was represented by
    counsel in the current case, who actively advocated for defendant, and
    defendant confirmed that defense counsel had explained his rights to
    him. Defendant also indicated that he understood that he had the
    right to a trial. Although he did not explicitly waive that right,
    his statements demonstrated that he understood that he would not have
    a trial.
    Contrary to defendant’s further contention, the sentence is not
    unduly harsh or severe.
    Entered:   September 28, 2012                   Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 09-01625

Filed Date: 9/28/2012

Precedential Status: Precedential

Modified Date: 10/8/2016