| People v Tracy |
| 2010 NY Slip Op 06955 [77 AD3d 1402] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Dale R. Tracy,Appellant. |
—[*1] Donald H. Dodd, District Attorney, Oswego (Michael G. Cianfarano of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.), rendered May12, 2009. The judgment convicted defendant, upon his plea of guilty, of burglary in the third degree,petit larceny and criminal mischief in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, ofburglary in the third degree (Penal Law § 140.20), petit larceny (§ 155.25) and criminalmischief in the fourth degree (§ 145.00 [1]). We reject the contention of defendant that he wasdenied effective assistance of counsel. Contrary to the contention of defendant, defense counsel did notmake any statements to County Court that were against defendant's interests and thus did not placehimself in an adverse position to that of defendant (see People v Coleman, 294 AD2d 843[2002]). Also contrary to the contention of defendant, he was not denied effective assistance of counselby defense counsel's incorrect citation to CPL 440.10 rather than CPL 220.60 (3) in support ofdefendant's motion to withdraw the plea. The incorrect statutory reference is of no moment inasmuch asthe record establishes that the court decided the motion on its merits (see generally People vBaldi, 54 NY2d 137, 147 [1981]). Further, the court did not abuse its discretion in denyingdefendant's motion to vacate the plea (seegenerally People v Dozier, 74 AD3d 1808 [2010]). Finally, we reject defendant's challenge tothe severity of the sentence. Present—Fahey, J.P., Carni, Lindley, Green and Gorski, JJ.