| People v Garner |
| 2011 NY Slip Op 05892 [86 AD3d 955] |
| July 8, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MichaelGarner, Jr., Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nicole M. Fantigrossi of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D. Valentino, J.),rendered June 10, 2008. The judgment convicted defendant, upon his plea of guilty, of robbery inthe first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of onecount of robbery in the first degree (Penal Law § 160.15 [4]), defendant contends that hisplea was not knowingly, intelligently and voluntarily entered and thus that Supreme Court erredin denying his motion to withdraw the plea. We reject that contention. "Permission to withdraw aguilty plea rests solely within the court's discretion . . . , and refusal to permitwithdrawal does not constitute an abuse of that discretion unless there is some evidence ofinnocence, fraud, or mistake in inducing the plea" (People v Robertson, 255 AD2d 968[1998], lv denied 92 NY2d 1053 [1999]). During the plea colloquy, defendant admittedforcibly stealing the victim's property while his accomplice displayed a firearm, and heacknowledged that he discussed the plea with defense counsel and understood the pleaproceedings. Defendant's contention that he was pressured into accepting the plea is belied by hisstatements during the plea proceedings (see People v Beaty, 303 AD2d 965 [2003], lvdenied 100 NY2d 559 [2003]). In addition, defendant's conclusory and unsubstantiated claimof innocence is belied by his admissions during the plea colloquy (see People v Wright, 66 AD3d1334 [2009], lv denied 13 NY3d 912 [2009]), and his claim that he was under"duress" and has no recollection of the plea do not require vacatur of the plea (see People vAlexander, 97 NY2d 482, 486 [2002]). Thus, we conclude that defendant's plea wasknowingly, intelligently and voluntarily entered (see generally People v Singletary, 51 AD3d 1334 [2008], lvdenied 11 NY3d 741 [2008]).
We reject defendant's further contention that he was denied effective assistance of counsel.Defendant's contention "survives his guilty plea only to the extent that defendant contends thathis plea was infected by the alleged ineffective assistance" (People v Nieves, 299 AD2d888, 889 [2002], lv denied 99 NY2d 631 [2003]). "In the context of a guilty plea, adefendant has been afforded meaningful representation when he or she receives an advantageousplea and nothing in the record casts doubt on the apparent effectiveness of [defense] counsel"(People v Ford, 86 [*2]NY2d 397, 404 [1995]), and thatis the case here (see People vBalanean, 55 AD3d 1353 [2008], lv denied 11 NY3d 895 [2008]). "To theextent that defendant contends that defense counsel was ineffective because he coerced defendantinto pleading guilty, that contention is belied by defendant's statement during the plea colloquythat the plea was not the result of any threats, pressure or coercion" (People v Campbell, 62 AD3d1265, 1266 [2009], lv denied 13 NY3d 795 [2009]). Present—Centra, J.P.,Fahey, Peradotto, Sconiers and Gorski, JJ.