PEOPLE v. GUTIERREZ

Reset A A Font size: Print

Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Danilo GUTIERREZ, appellant.

Decided: December 26, 2006

ANITA R. FLORIO, J.P., DAVID S. RITTER, GLORIA GOLDSTEIN, and JOSEPH COVELLO, JJ. John P. Savoca, White Plains, N.Y., for appellant. Francis D. Phillips II, District Attorney, Goshen, N.Y. (David R. Huey of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Orange County (Rosenwasser, J.) dated August 23, 2005, convicting him of robbery in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The County Court providently exercised its discretion in denying the defendant's pro se application to withdraw his plea of guilty (see CPL 220.60 [3];  People v. Frederick, 45 N.Y.2d 520, 525, 410 N.Y.S.2d 555, 382 N.E.2d 1332).   The defendant's allegations of coercion, made at sentencing, were belied by the record of the plea proceedings in which he expressly stated that he was not forced into pleading guilty and was doing so of his own free will (see People v. Taylor, 17 A.D.3d 491, 792 N.Y.S.2d 348;  People v. Sloane, 13 A.D.3d 400, 785 N.Y.S.2d 538;  People v. Robertson, 2 A.D.3d 756, 768 N.Y.S.2d 645).   Furthermore, the minutes of the plea proceeding show that the defendant entered a knowing and voluntary plea and there is nothing in the record to suggest that the plea was improvident or baseless (see People v. Robertson, supra;  People v. Weekes, 289 A.D.2d 599, 735 N.Y.S.2d 815).

The defendant's present claims regarding the alleged ineffective assistance of his trial counsel are unpreserved for appellate review (see People v. Deale, 29 A.D.3d 602, 813 N.Y.S.2d 311, lv. denied 7 N.Y.3d 787, 821 N.Y.S.2d 817, 854 N.E.2d 1281;  People v. Catts, 26 A.D.3d 341, 812 N.Y.S.2d 549;  People v. Aguirre, 304 A.D.2d 771, 757 N.Y.S.2d 776).   Moreover, the defendant's claims of ineffective assistance of counsel relate to matters which did not directly involve the plea-bargaining process (see People v. Petgen, 55 N.Y.2d 529, 535, 450 N.Y.S.2d 299, 435 N.E.2d 669;  People v. Cumba, 32 A.D.3d 444, 820 N.Y.S.2d 304;  People v. Scalercio, 10 A.D.3d 697, 781 N.Y.S.2d 745) or are dehors the record (see CPL 440.10;  People v. Deale, supra;  People v. Petteway, 22 A.D.3d 772, 802 N.Y.S.2d 370;   People v. Krebs, 11 A.D.3d 713, 784 N.Y.S.2d 564).

The defendant's remaining contention was waived by virtue of the waiver of his right to appeal (see People v. Ramos, 7 N.Y.3d 737, 819 N.Y.S.2d 853, 853 N.E.2d 222;  People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108).

Copied to clipboard