People v. Bonavito

Oct 3, 2014
Versions:121 A.D.3d 1499
992 N.Y.S.2d 830

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal sexual act in the first degree (Penal Law §§ 110.00, 130.50 [3]). Contrary to defendant‘s contention, County Court did not abuse its discretion in denying his motion to withdraw the plea (see People v Buske, 87 AD3d 1354, 1355 [2011], lv denied 18 NY3d 882 [2012]; People v Sparcino, 78 AD3d 1508, 1509 [2010], lv denied 16 NY3d 746 [2011]). “‘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 Pillich, 48 AD3d 1061, 1061 [2008], lv denied 11 NY3d 793 [2008]; see People v Garner, 86 AD3d 955, 955 [2011]; see generally People v Said, 105 AD3d 1392, 1393 [2013], lv denied 21 NY3d 1019 [2013]). Here, defendant‘s contention that he was under the influence of prescription medication at the time of the offense “did not constitute a protestation of innocence or the assertion of a defense necessitating withdrawal of the plea” (People v Legault, 180 AD2d 912, 913 [1992], lv denied 79 NY2d 1051 [1992]; see People v Di Paola, 143 AD2d 487, 488 [1988]), inasmuch as intent is not an element of the crime of criminal sexual act in the first degree based upon oral sexual conduct with a person under the age of 11 (see People v Newton, 8 NY3d 460, 464 [2007]; People v Washington, 156 AD2d 496, 496-497 [1989], lv denied 75 NY2d 925 [1990]; Di Paola, 143 AD2d at 488; see generally Penal Law § 15.25).

To the extent that defendant‘s contention that he received ineffective assistance of counsel survives his plea of guilty and valid waiver of the right to appeal (see People v Strickland, 103 AD3d 1178, 1178 [2013]), we conclude that it is without merit. “‘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‘” (Garner, 86 AD3d at 956), and that is the case here (see People v Jackson, 90 AD3d 1692, 1694 [2011], lv denied 18 NY3d 958 [2012]; People v Gross, 50 AD3d 1577, 1577 [2008]).

Finally, defendant‘s challenge to the factual sufficiency of the plea allocution is encompassed by his valid waiver of the right to appeal (see People v Zimmerman, 100 AD3d 1360, 1361 [2012], lv denied 20 NY3d 1015 [2013]; People v Branch, 49 AD3d 1206, 1206-1207 [2008], lv denied 10 NY3d 932 [2008]).

Present—Scudder, P.J., Smith, Centra, Fahey and Peradotto, JJ.