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People v. Neil

Supreme Court of New York, Fourth Department

December 27, 2013

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DAVID O. NEIL, DEFENDANT-APPELLANT.

Appeal from a judgment of the Steuben County Court (Marianne Furfure, A.J.), rendered September 26, 2011. The judgment convicted defendant, upon his guilty plea, of attempted arson in the second degree.

KATHLEEN P. REARDON, ROCHESTER, FOR DEFENDANT-APPELLANT.

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon his guilty plea, of attempted arson in the second degree (Penal Law §§ 110.00, 150.15). Even assuming, arguendo, that defendant's challenge to the factual sufficiency of the plea allocution has been preserved for our review (see generally People v Lopez, 71 N.Y.2d 662, 665), we conclude that defendant's challenge lacks merit. Defendant "pleaded guilty to a crime lesser than that charged in the indictment, " and thus no factual colloquy was required (People v Richards, 93 A.D.3d 1240, 1240, lv denied 20 N.Y.3d 1014). Defendant further contends that he was denied effective assistance of counsel because defense counsel did not explore or address a possible defense of intoxication. Although defendant's contention "survives his guilty plea... to the extent that [he] contends that his plea was infected by the alleged ineffective assistance, " we conclude that defendant received meaningful representation inasmuch as he received "an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel" (People v Nieves, 299 A.D.2d 888, 889, lv denied 99 N.Y.2d 631 [internal quotation marks omitted]; see People v Campbell, 106 A.D.3d 1507, 1508, lv denied 21 N.Y.3d 1002).


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