GARNER, JR., MICHAEL, PEOPLE v ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
839
KA 08-01499
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, SCONIERS, AND GORSKI, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
MICHAEL GARNER, JR., DEFENDANT-APPELLANT.
KRISTIN F. SPLAIN, CONFLICT DEFENDER, ROCHESTER (RICHARD W. YOUNGMAN
OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NICOLE M. FANTIGROSSI
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered June 10, 2008. The judgment
convicted defendant, upon his plea of guilty, of robbery 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 one count of robbery in the first degree (Penal Law
§ 160.15 [4]), defendant contends that his plea was not knowingly,
intelligently and voluntarily entered and thus that Supreme Court
erred in denying his motion to withdraw the plea. We reject that
contention. “Permission to withdraw a guilty plea rests solely within
the court’s discretion . . ., and refusal to permit withdrawal does
not constitute an abuse of that discretion unless there is some
evidence of innocence, fraud, or mistake in inducing the plea” (People
v Robertson, 255 AD2d 968, lv denied 92 NY2d 1053). During the plea
colloquy, defendant admitted forcibly stealing the victim’s property
while his accomplice displayed a firearm, and he acknowledged that he
discussed the plea with defense counsel and understood the plea
proceedings. Defendant’s contention that he was pressured into
accepting the plea is belied by his statements during the plea
proceedings (see People v Beaty, 303 AD2d 965, lv denied 100 NY2d
559). In addition, defendant’s conclusory and unsubstantiated claim
of innocence is belied by his admissions during the plea colloquy (see
People v Wright, 66 AD3d 1334, lv denied 13 NY3d 912), and his claim
that he was under “duress” and has no recollection of the plea do not
require vacatur of the plea (see People v Alexander, 97 NY2d 482,
486). Thus, we conclude that defendant’s plea was knowingly,
intelligently and voluntarily entered (see generally People v
Singletary, 51 AD3d 1334, lv denied 11 NY3d 741).
-2- 839
KA 08-01499
We reject defendant’s further contention that he was denied
effective assistance of counsel. Defendant’s contention “survives his
guilty plea only to the extent that defendant contends that his plea
was infected by the alleged ineffective assistance” (People v Nieves,
299 AD2d 888, 889, lv denied 99 NY2d 631). “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 [defense] counsel”
(People v Ford, 86 NY2d 397, 404), and that is the case here (see
People v Balanean, 55 AD3d 1353, lv denied 11 NY3d 895). “To the
extent that defendant contends that defense counsel was ineffective
because he coerced defendant into pleading guilty, that contention is
belied by defendant’s statement during the plea colloquy that the plea
was not the result of any threats, pressure or coercion” (People v
Campbell, 62 AD3d 1265, 1266, lv denied 13 NY3d 795).
Entered: July 8, 2011 Patricia L. Morgan
Clerk of the Court