People v. Burgess

• Decision Date: 22 February 2011
• Citation: 917 N.Y.S.2d 881,81 A.D.3d 969
• Parties: The PEOPLE, etc., respondent, v. Mark BURGESS, appellant.
• Court: New York Supreme Court — Appellate Division

917 N.Y.S.2d 881
81 A.D.3d 969

The PEOPLE, etc., respondent,
v.
Mark BURGESS, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 22, 2011.

Richard J. Barbuto, Babylon, N.Y., for appellant.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Yael V. Levy and Richard R. Martell of counsel), for respondent.

81 A.D.3d 970

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Kase, J.), rendered January 22, 2010, convicting him of robbery in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, his plea of guilty was knowingly, voluntarily, and intelligently made ( see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646; People v. Harris, 61 N.Y.2d 9, 16-17, 471 N.Y.S.2d 61, 459 N.E.2d 170). The defendant's assertion that his plea was pressured or coerced is belied by the record ( see People v. Scott, 77 A.D.3d 689, 689, 908 N.Y.S.2d 348; People v. Aguayo, 73 A.D.3d 938, 939, 899 N.Y.S.2d 878; People v. Mirecki, 63 A.D.3d 1089, 1089, 880 N.Y.S.2d 569).

We find the defendant's waiver of his right to appeal was not valid. However, " '[b]y pleading guilty, the defendant forfeited ... his claims of ineffective assistance of counsel which do not directly involve the bargaining process' " ( People v. Perazzo, 65 A.D.3d 1058, 1059, 886 N.Y.S.2d 43, quoting People v. Russell, 58 A.D.3d 759, 760, 871 N.Y.S.2d 702; see People v. DeLuca, 45 A.D.3d 777, 847 N.Y.S.2d 198; People v. Turner, 40 A.D.3d 1018, 1019, 834 N.Y.S.2d 666). Moreover, "[t]o the extent that the defendant's claim that he was deprived of the effective assistance of counsel involves matter dehors the record, it cannot be reviewed on direct appeal" ( People v. Bermejo, 77 A.D.3d 965, 966, 909 N.Y.S.2d 398; see People v. Kent, 79 A.D.3d 52, 72, 910 N.Y.S.2d 78; People v. Tillman, 74 A.D.3d 1251, 1251, 902 N.Y.S.2d 416; People v. Surin, 70 A.D.3d 731, 732, 892 N.Y.S.2d 864). Insofar as the defendant's claim may properly be reviewed, the record reveals that defense counsel provided effective assistance ( see People v. Henry, 95 N.Y.2d 563, 721 N.Y.S.2d 577, 744 N.E.2d 112; People v. Benevento, 91...