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The People of the State of New York v. Edwin Burgos

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


May 20, 2011

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
EDWIN BURGOS,
APPELLANT.

Appeal from a judgment of the City Court of Mount Vernon, Westchester County (Mark Gross, J.), rendered January 11, 2010.

People v Burgos (Edwin)

Decided on May 20, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: TANENBAUM, J.P., LaCAVA and IANNACCI, JJ

The judgment convicted defendant, upon his plea of guilty, of criminal contempt in the second degree.

ORDERED that the judgment of conviction is affirmed.

Defendant's contention that his plea was not voluntary is unpreserved for appellate review since defendant did not move to withdraw his plea or vacate the judgment of conviction on this ground (see People v Shell, 73 AD3d 1095 [2010]; People v Wynn, 40 AD3d 893 [2007]). Also, the narrow exception to the preservation requirement is inapplicable as defendant's statements during his 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, we note that "there is no requirement for a uniform mandatory catechism of pleading defendants" (People v Seeber, 4 NY3d 780, 781 [2005]), and that the City Court advised defendant that by pleading guilty he would waive his right to remain silent and inquired if defendant had had sufficient opportunity to discuss the plea and its consequences with his attorney. A review of the record indicates that the City Court properly accepted defendant's plea, which was knowingly, voluntarily and intelligently made (see People v Seeber, 4 NY3d at 781; People v Sparrow, 30 Misc 3d 130[A], 2010 NY Slip Op 52312[U] [App Term, 9th & 10th Jud Dists 2010]).

Defendant's contention that he was deprived of the effective assistance of counsel rests mainly on matter dehors the record, which cannot be reviewed on direct appeal (see People v Ali, 55 AD3d 919 [2008]; People v DeLuca, 45 AD3d 777 [2007]). To the extent this contention is reviewable on direct appeal, the record indicates that defendant's counsel provided meaningful representation in accordance with the state standard (see NY Const, art I, § 6; People v Ford, 86 NY2d 397 [1995]; People v Johnson, 71 AD3d 1048 [2010]). Moreover, counsel's performance could not be characterized as either deficient or prejudicial to defendant and, thus, was also in accordance with the federal standard (see US Const Amend VI; Strickland v Washington, 466 US 688 [1984]; People v Garrett, 68 AD3d 781 [2009]).

Accordingly, the judgment of conviction is affirmed.

Tanenbaum, J.P., LaCava and Iannacci, JJ., concur.

Decision Date: May 20, 2011

20110520

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