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The People of the State of New York v. Joseph Sparrow

December 21, 2010


Appeal from a judgment of the City Court of Poughkeepsie, Dutchess County (Katherine A. Moloney, J.), rendered February 2, 2009. The judgment convicted defendant, upon his plea of guilty, of endangering the welfare of a child and imposed sentence.

People v Sparrow (Joseph)

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 21, 2010


ORDERED that the judgment of conviction is affirmed.

Defendant's contentions that his plea was not knowingly, voluntarily and intelligently made, and that he was not provided with the effective assistance of counsel are unpreserved for our review, as defendant did not move to withdraw his plea or to vacate the judgment of conviction on these grounds (see People v Wynn, 40 AD3d 893 [2007]; see also People v Thompson, 28 AD3d 498 [2006]). The narrow exception to the preservation requirement is inapplicable, since defendant's statements during the plea allocution neither cast doubt on his guilt nor call the voluntariness of his plea into question (see People v Lopez, 71 NY2d 662, 666 [1988]). In any event, "there is no requirement for a uniform mandatory catechism of pleading defendants" (People v Seeber, 4 NY3d 780, 781 [2005]), and we note that the City Court inquired whether defendant had sufficient opportunity to discuss the plea and its consequences with his attorney. Defendant's statements during the plea allocution refute his assertion that defense counsel coerced him to enter a guilty plea (see People v Wiedmer, 71 AD3d 1067 [2010]; People v Hughes, 62 AD3d 1026, 1026 [2009]). Therefore, the record establishes that the City Court properly accepted defendant's plea, which was knowingly, voluntarily and intelligently made (see Hughes, 62 AD3d at 1026-1027; People v Smith, 22 Misc 3d 140[A], 2009 NY Slip Op 50392[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

To the extent that defendant's contentions regarding the alleged ineffective assistance of counsel rest on matters outside the record, they are not reviewable on direct appeal (see People v Ali, 55 AD3d 919 [2008]; People v Drago, 50 AD3d 920 [2008]). Insofar as the contentions are reviewable, we find that defendant received meaningful representation under both the state and federal standards (see e.g. Drago, 50 AD3d 920).

To prevail on a federal claim of ineffective assistance, a defendant must demonstrate both that counsel's performance was deficient and that the deficient performance prejudiced the defendant (Strickland v Washington, 466 US 668 [1984]). Prejudice exists when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" (Strickland, 466 US at 694). The state flexible standard" approach (People v Benevento, 91 NY2d 708, 712 [1998]), by contrast, views the process as a whole" (People v Henry, 95 NY2d 563, 565 [2000]) and evaluates whether, on the law, evidence and circumstances of the particular case, counsel provided less than meaningful representation" (People v Baldi, 54 NY2d 137, 147 [1981]).

In the instant case, defendant was charged with endangering the welfare of a child (Penal Law § 260.10) and assault in the third degree (Penal Law § 120.00 [1]), punishable by a maximum of two concurrent one-year sentences of imprisonment (see Penal Law § 70.25 [2]; People v Alford, 14 NY3d 846, 847 [2010]). As a result of the plea, however, defendant's attorney limited defendant's conviction to endangering the welfare of a child in full satisfaction of the accusatory instrument, and defendant was sentenced to probation rather than a term of imprisonment. Thus, defendant's counsel provided meaningful representation in accordance with the state standard (see People v Johnson, 71 AD3d 1048 [2010]). Having found that defendant was not denied meaningful representation under the more protective state standard, we necessarily reject defendant's federal constitutional challenge as well (see People v Caban, 5 NY3d 143 [2005]).

Since he pleaded guilty with the understanding that he would receive the sentence actually imposed, defendant has no basis to now challenge his sentence as excessive (People v Quiman, 71 AD3d 921 [2010]; People v De Alvarez, 59 AD3d 732 [2009]), and, in any event, the sentence was not excessive (see Quiman, 71 AD3d at 922; People v Suitte, 90 AD2d 80 [1982]).

Accordingly, the judgment of conviction ...

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