| People v McKoy |
| 2009 NY Slip Op 02121 [60 AD3d 1374] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Lamon J.McKoy, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Brian D. Dennis of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, J.), renderedFebruary 10, 2005. The judgment convicted defendant, upon his plea of guilty, of murder in thesecond degree (two counts), sodomy in the first degree, and assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice and on the law by reversing that part convicting defendantof assault in the second degree and dismissing count 14 of the indictment and as modified thejudgment is affirmed.
Memorandum: On appeal from a judgment convicting him as a juvenile offender upon hisplea of guilty of two counts of murder in the second degree (Penal Law § 125.25 [1]), andone count each of sodomy in the first degree (former § 130.50 [1]) and assault in thesecond degree (§ 120.05 [6]), defendant contends that his plea was not voluntarily entered;that he was denied effective assistance of counsel; and that County Court abused its discretion indenying his motion to withdraw the plea without conducting a hearing or assigning defendantnew counsel. We reject those contentions. With respect to the contentions of defendantconcerning the voluntariness of the plea, i.e., that he is innocent but entered the plea as the resultof duress and coercion, and the alleged denial of effective assistance of counsel, we concludethat those contentions are belied by his statements during the plea colloquy (see People vBrown, 59 AD3d 937 [2009]; People v Kimmons, 39 AD3d 1180 [2007]; Peoplev Farley, 34 AD3d 1229, 1230 [2006], lv denied 8 NY3d 880 [2007]). The recordalso does not support the contention of defendant that defense counsel took a position adverse tothat of defendant during argument of his pro se motion to withdraw the plea (see People vKlumpp, 269 AD2d 798, 799 [2000], lv denied 94 NY2d 922 [2000]), and thus itwas not necessary for defense counsel to seek to withdraw as defendant's attorney or for thecourt to assign new counsel for the motion (cf. People v Hunter, 35 AD3d 1228 [2006];People v Singletary, 233 AD2d 849 [1996]). The sentence is not unduly harsh or severe.
Finally, although not raised by defendant on appeal, we conclude that the court was notauthorized to accept a plea of guilty to count 14 of the indictment, assault in the second degree.As a juvenile offender, defendant cannot be held criminally responsible for that crime inaccordance with paragraph (2) of CPL 1.20 (42) (see Penal Law § 30.00 [2];People v Boye, 175 [*2]AD2d 924 [1991]; see alsoPeople v Holmes, 220 AD2d 109, 112 [1996], affd 89 NY2d 838 [1996]; Peoplev Stowe, 15 AD3d 597, 598 [2005], lv denied 5 NY3d 770 [2005]). We conclude,however, that the plea to that count of the indictment is not "an integral part of a nonseverableplea bargain . . .[, and thus only count 14 of the indictment] must . . .be set aside and deemed a nullity" (Boye, 175 AD2d 924 [1991]). We therefore modifythe judgment accordingly. Present—Hurlbutt, J.P., Martoche, Fahey, Carni and Gorski, JJ.