| People v Nieves |
| 2011 NY Slip Op 08241 [89 AD3d 1285] |
| November 17, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Miguel A. Nieves,Appellant. |
—[*1] William G. Gabor, District Attorney, Wampsville (Elizabeth S. Healy of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Madison County (DiStefano, J.),rendered January 27, 2011, convicting defendant upon his plea of guilty of the crime of criminalpossession of stolen property in the fourth degree.
Defendant waived indictment and, in satisfaction of a superior court information, pleaded guilty tocriminal possession of stolen property in the fourth degree. Pursuant to the plea agreement, defendantwould be sentenced to a split sentence of five years of probation, a maximum of four weekends in jail,and he would be required to pay restitution. County Court admonished defendant that the split sentencewas contingent on defendant fully cooperating with the Probation Department and appearing forsentencing on the time and date specified by the court, and that if he failed to abide by these conditions,it would not be bound by the plea agreement. Defendant failed to respond to the ProbationDepartment's request for an interview nor did he appear at the time required on the date of sentencing,and a bench warrant was issued. County Court thereafter sentenced defendant to 10 months in jail andrequired defendant to pay restitution. Defendant now appeals.
We affirm. Defendant's claim that he was denied the effective assistance of counsel is without merit."In the context of a guilty plea, a defendant has been afforded meaningful representation when he or shereceives an advantageous plea and nothing in the record casts [*2]doubt upon the apparent effectiveness of counsel" (People v Singletary, 51 AD3d 1334,1335 [2008], lv denied 11 NY3d 741 [2008] [internal quotation marks and citations omitted]).Here, counsel secured a favorable plea deal that required a minimum amount of jail time. Further, thereis nothing in the record to indicate that defendant was unable to understand the plea proceedings or wasunable to abide by the conditions of the plea agreement due to mental illness. Contrary to defendant'scontention, counsel's failure to request a hearing at sentencing to evaluate defendant's mental conditiondid not deprive him of the effective assistance of counsel (see People v Lafoe, 75 AD3d 663, 663-664 [2010], lv denied15 NY3d 953 [2010]; People vStephens, 51 AD3d 1225, 1226 [2008]). We further note counsel's argument, prior tosentencing, that there were mitigating circumstances surrounding defendant's failure to abide by theconditions that were imposed pending sentencing, including defendant's mental condition, as well as hisfailure to receive any notice from the Probation Department concerning the presentence interview andproblems securing transportation. Under these circumstances, we find that defendant was affordedmeaningful representation. Defendant has completed his sentence during the pendency of his appeal,rendering his remaining claim that his sentence was harsh and excessive moot (see People v Planty, 85 AD3d 1317,1318-1319 [2011], lv denied 17 NY3d 820 [2011]; People v Gagnier, 29 AD3d 1081 [2006]).
Peters, J.P., Lahtinen, Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.