People v. Hogue

Jun 14, 2002
Versions:295 A.D.2d 928
744 N.Y.S.2d 741
2002 N.Y. App. Div. LEXIS 6336

—Appeal from a judgment of Steuben County Court (Kehoe, J.), entered February 8, 2000, convicting defendant upon his plea of guilty of attempted burglary in the second degree.

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

Memorandum: Defendant failed to move to withdraw his plea of guilty to attempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [2]) or to vacate the judgment of conviction and thus failed to preserve for our review his contention that his plea was not knowing and voluntary (see People v Lopez, 71 NY2d 662, 665; People v Swank, 278 AD2d 861, lv denied 96 NY2d 807). In any event, defendant’s contention is without merit. Defendant was afforded an opportunity to withdraw his plea of guilty when County Court realized prior to sentencing that defendant was a second violent felony offender and that the agreed-upon sentence therefore was illegal. However, defendant decided not to withdraw his plea after the People agreed to forego additional prosecution of defendant for other alleged criminal conduct and the court agreed to sentence defendant to a determinate term of incarceration of seven years *929if defendant did not withdraw the plea. In addition, when the court became aware of an alleged statement by defendant to the effect that he was pleading guilty to a crime that he did not commit but “getting off’ for other crimes that he had committed, the court conducted further inquiry to ensure that the plea was knowing and voluntary (see Lopez, 71 NY2d at 666). Even assuming, arguendo, that the further contention of defendant that he was denied effective assistance of counsel survives his plea of guilty (see People v Brown, 284 AD2d 904, lv denied 96 NY2d 916), we conclude that defendant’s contention lacks merit (see generally People v Baldi, 54 NY2d 137, 147). The bargained-for sentence is not unduly harsh or severe. Present—Green, J.P., Hayes, Hurlbutt, Burns and Gorski, JJ.