People v. Montalvo

• Decision Date: 03 April 2013
• Citation: 105 A.D.3d 774,2013 N.Y. Slip Op. 02271,961 N.Y.S.2d 324
• Parties: The PEOPLE, etc., respondent, v. Cesar MONTALVO, appellant.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 774
961 N.Y.S.2d 324
2013 N.Y. Slip Op. 02271

The PEOPLE, etc., respondent,
v.
Cesar MONTALVO, appellant.

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

April 3, 2013.

[961 N.Y.S.2d 325]

Lynn W. L. Fahey, New York, N.Y. (Paul Skip Laisure of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, Tina Grillo, and Suzanne H. Sullivan of counsel), for respondent.

RANDALL T. ENG, P.J., THOMAS A. DICKERSON, L. PRISCILLA HALL, and PLUMMER E. LOTT, JJ.

[105 A.D.3d 775]Appeal by the defendant from a judgment of the Supreme Court, Queens County (Blumenfeld, J.), rendered July 20, 2010, convicting him of burglary in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant moved to withdraw his plea of guilty on the ground that the plea was not knowing, voluntary, and intelligent because, inter alia, his attorney allegedly rendered ineffective assistance. After a hearing, the defendants' motions were denied.

Contrary to the defendant's contention, his waiver of the right to appeal was knowing, voluntary, and intelligent ( see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022). Because the defendant voluntarily waived his right to appeal, his claim that he was deprived of his right to effective assistance of counsel is precluded, except to the extent that the alleged ineffective assistance may have affected the voluntariness of his plea ( see People v. Ramos, 77 A.D.3d 773, 774, 909 N.Y.S.2d 484;People v. Drago, 50 A.D.3d 920, 920, 855 N.Y.S.2d 252;People v. Demosthene, 2 A.D.3d 874, 874, 769 N.Y.S.2d 746). Insofar as he contends that his counsel's conduct affected the voluntariness of his plea, contrary to the defendant's contention, his attorney provided him with meaningful representation ( see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213;People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400). Moreover, the record demonstrates that the defendant's plea of guilty was knowingly, voluntarily, and intelligently entered ( see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646;People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;People v. Harris, 61 N.Y.2d 9, 16, 471 N.Y.S.2d 61, 459 N.E.2d 170). Accordingly, the Supreme Court providently...