| People v Gheradi |
| 2009 NY Slip Op 09251 [68 AD3d 892] |
| December 8, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Joseph Gheradi, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Amy Appelbaumof counsel; Xiaobo Chen on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.),rendered October 18, 2007, convicting him of attempted robbery in the second degree, upon hisplea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The Supreme Court did not sufficiently advise the defendant of the ramifications of waivinghis right to appeal. Further, the record does not reflect that the defendant understood the waiveror that the defendant was given the opportunity to discuss the waiver with counsel (seePeople v Callahan, 80 NY2d 273 [1992]; People v Lopez, 6 NY3d 248 [2006]). Accordingly, the defendant'soral waiver of his right to appeal was not knowingly, voluntarily, and intelligently given. Assuch, we will address the merits of the defendant's claims (see People v Carrion, 65 AD3d 693 [2009]).
There is no merit to the defendant's contention that trial counsel was ineffective for failing toargue, in his motion to withdraw the defendant's plea, that the defendant's allocution wasfactually insufficient to establish the crime of robbery in the second degree pursuant to PenalLaw § 160.10 (1). " '[E]ven if the defendant's allocution did not establish the essentialelements of the crime to which he pleaded guilty, it would not require vacatur of his plea sincethere is no suggestion in the record that the plea was improvident or baseless' " (People v Donigan, 20 AD3d 487[2005], quoting People v Duff, 158 AD2d 711, 711 [1990]; see People v Seeber, 4 NY3d 780[2005]; People v Toxey, 86 NY2d 725, 726 [1995]). The defendant's factual recitationdid not cast doubt upon his guilt, nor did it negate an essential element of attempted robbery inthe second degree. "A defendant is not denied effective assistance of trial counsel merelybecause counsel does not make a motion or argument that has little or no chance of success" (People v Stultz, 2 NY3d 277, 287[2004]).
Moreover, since the defendant received the sentence for which he bargained, he has no basisto complain that the sentence imposed was excessive (see People v Rodriguez, 32 AD3d 481 [2006]; People v Demosthene, 21 AD3d384 [2005]; People v Fanelli, 8AD3d 296 [2004]). Rivera, J.P., Miller, Dickerson and Roman, JJ., concur.