People v. McLean

• Decision Date: 05 October 2010
• Citation: 908 N.Y.S.2d 352,77 A.D.3d 684
• Parties: The PEOPLE, etc., respondent, v. Jermaine McLEAN, appellant.
• Court: New York Supreme Court — Appellate Division

908 N.Y.S.2d 352

77 A.D.3d 684

The PEOPLE, etc., respondent,

v.Jermaine McLEAN, appellant.

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

Oct. 5, 2010.

Steven Banks, New York, N.Y. (Ellen Dille of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Sharon Y. Brodt of counsel; Lorrie A. Zinno on the brief), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered November 7, 2007, convicting him of burglary in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's claim with respect to the voluntariness of the plea survives even a valid waiver of the right to appeal (see People v. Rodriguez-Ovalles, 74 A.D.3d 1368, 903 N.Y.S.2d 258; People v. Elcine, 43 A.D.3d 1176, 1177, 843 N.Y.S.2d 343). However, the record of the plea proceeding establishes that the defendant's plea of guilty was knowingly, intelligently, and voluntarily entered (see People v. Garcia, 92 N.Y.2d 869, 870, 677 N.Y.S.2d 772, 700 N.E.2d 311; People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646; People v. Grimes, 35 A.D.3d 882, 883, 827 N.Y.S.2d 268). Accordingly, the Supreme Court providently exercised its discretion in denying the defendant's pro se motion to withdraw his plea of guilty (see CPL 220.60 [3];People v. DeLeon, 40 A.D.3d 1008, 1008-1009, 837 N.Y.S.2d 189; People v. Gully, 17 A.D.3d 382, 792 N.Y.S.2d 199).

RIVERA, J.P., DICKERSON, ENG and AUSTIN, JJ., concur.