PEOPLE v. GHERADI (2009)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered October 18, 2007, convicting him of attempted robbery in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

 The Supreme Court did not sufficiently advise the defendant of the ramifications of waiving his right to appeal.   Further, the record does not reflect that the defendant understood the waiver or that the defendant was given the opportunity to discuss the waiver with counsel (see People v. Callahan, 80 N.Y.2d 273, 590 N.Y.S.2d 46, 604 N.E.2d 108;  People v. Lopez, 6 N.Y.3d 248, 811 N.Y.S.2d 623, 844 N.E.2d 1145).   Accordingly, the defendant's oral waiver of his right to appeal was not knowingly, voluntarily, and intelligently given.   As such, we will address the merits of the defendant's claims (see People v. Carrion, 65 A.D.3d 693, 884 N.Y.S.2d 483).

 There is no merit to the defendant's contention that trial counsel was ineffective for failing to argue, in his motion to withdraw the defendant's plea, that the defendant's allocution was factually insufficient to establish the crime of robbery in the second degree pursuant to Penal Law § 160.10(1).  “ ‘[E]ven if the defendant's allocution did not establish the essential elements of the crime to which he pleaded guilty, it would not require vacatur of his plea since there is no suggestion in the record that the plea was improvident or baseless' ” (People v. Donigan, 20 A.D.3d 487, 487, 797 N.Y.S.2d 763, quoting People v. Duff, 158 A.D.2d 711, 711, 552 N.Y.S.2d 160;  see People v. Seeber, 4 N.Y.3d 780, 793 N.Y.S.2d 826, 826 N.E.2d 797;  People v. Toxey, 86 N.Y.2d 725, 726, 631 N.Y.S.2d 119, 655 N.E.2d 160).   The defendant's factual recitation did not cast doubt upon his guilt, nor did it negate an essential element of attempted robbery in the second degree.  “A defendant is not denied effective assistance of trial counsel merely because counsel does not make a motion or argument that has little or no chance of success” (People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883).

Moreover, since the defendant received the sentence for which he bargained, he has no basis to complain that the sentence imposed was excessive (see People v. Rodriguez, 32 A.D.3d 481, 819 N.Y.S.2d 482;  People v. Demosthene, 21 A.D.3d 384, 798 N.Y.S.2d 918;  People v. Fanelli, 8 A.D.3d 296, 777 N.Y.S.2d 320).