PEOPLE v. SILENT (2007)

Appeals by the defendant (1) from a judgment of the County Court, Nassau County (LaPera, J.), rendered August 18, 2003, convicting him of robbery in the second degree, upon a plea of guilty, and imposing sentence and (2), by permission, from an order of the same court entered January 11, 2005, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate the judgment.

ORDERED that the judgment and the order are affirmed.

 The defendant failed to preserve for appellate review his contention that his plea of guilty and waiver of the right to appeal were not intelligently, knowingly, or voluntarily made (see CPL 470.05[2];  see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Mitchell, 22 A.D.3d 769, 802 N.Y.S.2d 372;  People v. Hull, 300 A.D.2d 411, 751 N.Y.S.2d 747).   In any event, the defendant's claim that his plea and waiver were not intelligently, knowingly, or voluntarily made because the court failed to specifically enumerate all of the rights to which he was entitled is without merit (see People v. Harris, 61 N.Y.2d 9, 16, 471 N.Y.S.2d 61, 459 N.E.2d 170;  People v. Watson, 19 A.D.3d 518, 798 N.Y.S.2d 471;  People v. Flakes, 238 A.D.2d 520, 521, 657 N.Y.S.2d 936).   The Court of Appeals has consistently held that there is no “uniform mandatory catechism of pleading defendants” (People v. Nixon, 21 N.Y.2d 338, 353, 287 N.Y.S.2d 659, 234 N.E.2d 687, cert. denied sub nom. Robinson v. New York, 393 U.S. 1067, 89 S.Ct. 721, 21 L.Ed.2d 709;  see People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797;  People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646;  People v. Harris, supra ).   Moreover, the defendant acknowledged that he discussed the plea and waiver with his attorney, executed the waiver in open court, and indicated his understanding of the nature and consequences of the rights that he waived (see People v. Reynolds, 27 A.D.3d 668, 669, 811 N.Y.S.2d 128;  People v. Torres, 24 A.D.3d 692, 808 N.Y.S.2d 380).

 In addition, by pleading guilty, the defendant forfeited appellate review of “his claims of ineffective assistance of counsel, which did not directly involve the plea-bargaining process” (People v. Scalercio, 10 A.D.3d 697, 697, 781 N.Y.S.2d 745;  see People v. Petgen, 55 N.Y.2d 529, 535, n. 3, 450 N.Y.S.2d 299, 435 N.E.2d 669;  People v. Cumba, 32 A.D.3d 444, 444, 820 N.Y.S.2d 304;  People v. Deale, 29 A.D.3d 602, 603, 813 N.Y.S.2d 311).   Defense counsel obtained a favorable plea which limited the defendant's term of imprisonment to the minimum sentence that could be imposed under the applicable law.

 Further, the court properly, without a hearing, denied the defendant's claims that his trial counsel was ineffective, raised in his motion pursuant to CPL 440.10.   The defendant failed to meet his burden of demonstrating the absence of strategic or other legitimate explanations for his counsel's allegedly deficient conduct (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213;  People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698).   Absent such a showing, it is presumed that counsel acted in a competent manner and exercised professional judgment (see People v. Rivera, supra ).