People v. Yarborough

• Decision Date: 12 April 2011
• Citation: 2011 N.Y. Slip Op. 03096,920 N.Y.S.2d 681,83 A.D.3d 875
• Parties: The PEOPLE, etc., respondent, v. Michael YARBOROUGH, appellant.
• Court: New York Supreme Court

83 A.D.3d 875
920 N.Y.S.2d 681

The PEOPLE, etc., respondent,
v.
Michael YARBOROUGH, appellant.

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

April 12, 2011.

Maureen Galvin Dwyer, Northport, N.Y., for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Karla Lato of counsel), for respondent.

[83 A.D.3d 875]Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Hinrichs, J.), rendered January 22, 2010, convicting him of murder in the second

[920 N.Y.S.2d 682]

degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The Supreme Court providently exercised its discretion in denying the defendant's motion to withdraw his plea of guilty ( see CPL 220.60[3] ). The record supports the Supreme Court's determination that the defendant's plea was entered knowingly, voluntarily, and intelligently ( see People v. Scott, 77 A.D.3d 689, 908 N.Y.S.2d 348;People v. Hill, 9 N.Y.3d 189, 191, 849 N.Y.S.2d 13, 879 N.E.2d 152,cert. denied 553 U.S. 1048, 128 S.Ct. 2430, 171 L.Ed.2d 257;People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646). Further, although the defendant claims, inter alia, that he was coerced into pleading guilty, his claims are belied by the record ( see People v. Burgess, 81 A.D.3d 969, 917 N.Y.S.2d 881;People v. Scott, 77 A.D.3d 689, 908 N.Y.S.2d 348;People v. Aguayo, 73 A.D.3d 938, 939, 899 N.Y.S.2d 878).

“[T]he defendant's waiver of his right to appeal precludes review of his contention that he was denied the effective assistance of counsel, except to the extent that the alleged ineffective assistance affected the voluntariness of his plea” ( People v. Gedin, 46 A.D.3d 701, 847 N.Y.S.2d 231;see People v. Aguayo, 73 A.D.3d at 939, 899 N.Y.S.2d 878). To the extent the defendant contends that his counsel was ineffective such that the voluntariness of his plea was affected, the record reveals that the defendant received an advantageous plea, and nothing in the record casts doubt on the apparent effectiveness 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. Aguayo, 73 A.D.3d at 939, 899 N.Y.S.2d 878).

[83 A.D.3d 876]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 the sentence was excessive ( see People v. De Alvarez, 59 A.D.3d 732, 733, 873 N.Y.S.2d 724;People v. Fanelli, 8...