SHUBERT, ANDREW P., PEOPLE v ( 2011 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    593
    KA 10-01015
    PRESENT: SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    ANDREW P. SHUBERT, DEFENDANT-APPELLANT.
    LAW OFFICES OF MAURICE J. VERRILLO, P.C., ROCHESTER (MAURICE J.
    VERRILLO OF COUNSEL), FOR DEFENDANT-APPELLANT.
    JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF
    COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Orleans County Court (James P.
    Punch, J.), rendered May 11, 2009. The judgment convicted defendant,
    upon his plea of guilty, of attempted rape in the first 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 attempted rape in the first degree (Penal Law §§
    110.00, 130.35 [4]), defendant contends that his waiver of the right
    to appeal was not knowing and voluntary. Even assuming, arguendo,
    that the waiver of the right to appeal is invalid (see generally
    People v Lopez, 6 NY3d 248, 256-257), we nevertheless conclude that
    none of defendant’s contentions on appeal requires reversal or
    modification. Contrary to defendant’s contention, the sentence is not
    unduly harsh or severe. In addition, by failing to move to withdraw
    the plea or to vacate the judgment of conviction, defendant failed to
    preserve for our review his further contentions that the plea
    allocution was factually insufficient (see People v Lopez, 71 NY2d
    662, 665), and that the plea was not knowing and voluntary (see People
    v Cruz, 81 AD3d 1300). In any event, the record establishes that
    those contentions are without merit. Finally, to the extent that
    defendant’s contention that he was denied effective assistance of
    counsel is not forfeited by his plea of guilty (see People v Brown, 63
    AD3d 1650), that contention also is without merit (see generally
    People v Ford, 86 NY2d 397, 404). Defense counsel obtained an
    advantageous plea offer and requested several breaks during the plea
    proceeding in order to address defendant’s questions and concerns.
    Indeed, defendant assured County Court that he was satisfied with the
    -2-                           593
    KA 10-01015
    representation that he received from defense counsel.
    Entered:   April 29, 2011                       Patricia L. Morgan
    Clerk of the Court
    

Document Info

Docket Number: KA 10-01015

Filed Date: 4/29/2011

Precedential Status: Precedential

Modified Date: 10/8/2016