People v. Nimerofsky

• Decision Date: 03 November 2010
• Citation: 78 A.D.3d 735,909 N.Y.S.2d 656
• Parties: The PEOPLE, etc., respondent, v. Brad NIMEROFSKY, appellant.
• Court: New York Supreme Court — Appellate Division

909 N.Y.S.2d 656 78 A.D.3d 735 The PEOPLE, etc., respondent, v. Brad NIMEROFSKY, appellant. Supreme Court, Appellate Division, Second Department, New York. Nov. 3, 2010.

Michael G. Paul, New City, N.Y., for appellant.

Adam B. Levy, District Attorney, Carmel, N.Y. (Mary Jane MacCrae of counsel), for respondent.

WILLIAM F. MASTRO, J.P. ANITA R. FLORIO THOMAS A. DICKERSON ARIEL E. BELEN PLUMMER E. LOTT, JJ.

Appeal by the defendant from a judgment of the County Court, Putnam County(Rooney, J.), rendered March 31, 2010, convicting him of driving while intoxicatedunder Vehicle and Traffic Law § 1192(3), 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. 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, 16-17, 471 N.Y.S.2d 61, 459 N.E.2d 170; People v. Nixon, 21 N.Y.2d 338, 353, 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). To the extent that the defendant's contentions regarding any alleged ineffective assistance of counsel rest on matter outside the record, they are not reviewable on direct appeal ( see People v. Ali, 55 A.D.3d 919, 865 N.Y.S.2d 579; People v. Drago, 50 A.D.3d 920, 855 N.Y.S.2d 252). Insofar as the contentions are reviewable, the defendant received meaningful representation ( see People v. Drago, 50 A.D.3d 920, 855 N.Y.S.2d 252; People v. Brooks, 36 A.D.3d 929, 930, 828 N.Y.S.2d 553; People v. Grimes, 35 A.D.3d 882, 827 N.Y.S.2d 268).

Since the defendant pleaded guilty with the understanding that he would receive the sentence which was thereafter actually imposed, he has no basis to now complain that his sentence was excessive ( see People v. De Alvarez, 59 A.D.3d 732, 873 N.Y.S.2d 724; People v. Fanelli, 8 A.D.3d 296, 777 N.Y.S.2d 320; People v. Mejia, 6 A.D.3d 630, 774 N.Y.S.2d 801; People v. Kazepis, 101 A.D.2d 816, 475 N.Y.S.2d 351). In any event, the sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

MASTRO, J.P., FLORIO, DICKERSON, BELEN and LOTT, JJ., concur.