People v. Kirby

• Decision Date: 05 October 2010
• Citation: 77 A.D.3d 680,908 N.Y.S.2d 354
• Parties: The PEOPLE, etc., respondent, v. Duane KIRBY, appellant.
• Court: New York Supreme Court — Appellate Division

908 N.Y.S.2d 354 77 A.D.3d 680 The PEOPLE, etc., respondent, v. Duane KIRBY, appellant. Supreme Court, Appellate Division, Second Department, New York. Oct. 5, 2010.

Janet Gandolfo, Sleepy Hollow, N.Y., for appellant.

Francis D. Phillips II, District Attorney, Goshen, N.Y. (Robert H. Middlemiss of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Orange County(Freehill, J.), rendered June 1, 2009, convicting him of burglary in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contentions, a review of the minutes of the plea proceedings clearly demonstrates that his plea of guilty was voluntarily, intelligently, and knowingly made ( see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646; People v. Callahan, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108; People v. Moissett, 76 N.Y.2d 909, 910-911, 563 N.Y.S.2d 43, 564 N.E.2d 653; people v. harris, 61 n.y.2d 9, 16, 471 n.Y.s.2d 61, 459 n.e.2d 170; People v. Nixon, 21 N.Y.2d 338, 287 N.Y.S.2d 659, 234 N.E.2d 687, cert. denied sub nom. Robinson v. New York, 393 U.S. 1067, 89 S.Ct. 721, 21 L.Ed.2d 709). Accordingly, the County Court providently exercised its discretion in denying the defendant's motion to withdraw his plea of guilty ( see People v. Seeber, 4 N.Y.3d 780, 793 N.Y.S.2d 826, 826 N.E.2d 797; People v. Mann, 32 A.D.3d 865, 821 N.Y.S.2d 616; People v. Kucharczyk, 15 A.D.3d 595, 790 N.Y.S.2d 522). Moreover, in light of the record herein, the defendant was not deprived of the effective assistance of counsel ( see People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265; People v. Brooks, 36 A.D.3d 929, 930, 828 N.Y.S.2d 553; People v. Sherrill, 27 A.D.3d 588, 588, 810 N.Y.S.2d 372; People v. Weekes, 289 A.D.2d 599, 599, 735 N.Y.S.2d 815; People v. Clark, 254 A.D.2d 299, 680 N.Y.S.2d 258; People v. Boodhoo, 191 A.D.2d 448, 593 N.Y.S.2d 882).

RIVERA, J.P., COVELLO, ENG, LEVENTHAL and AUSTIN, JJ., concur.