People v. Clendinen

Appellate Division of the Supreme Court of New York

People v. Clendinen

4 A.D.3d 116, 770 N.Y.S.2d 862

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 3, 2004

StatusPublished

This text of 4 A.D.3d 116 (People v. Clendinen) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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People v. Clendinen, 4 A.D.3d 116, 770 N.Y.S.2d 862 (N.Y. Ct. App. 2004).

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Opinion

Judgment, Supreme Court, Bronx County (William Donnino, J.), rendered June 17, 2002, convicting defendant, upon his plea of guilty, of robbery in the third degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.

The court properly exercised its discretion in denying defendant’s motion to withdraw his guilty plea, after affording defendant sufficient opportunity to present his claims. The court [117]*117was thoroughly familiar with the proceedings, including the plea allocution, and the record supports its finding that defendant’s claims were unfounded (see e.g. People v Frederick, 45 NY2d 520 [1978]; People v Clendinen, 240 AD2d 298 [1997], lv denied 90 NY2d 903 [1997]).

Defendant was not deprived of his rights to effective assistance of counsel and conflict-free representation by a statement made by counsel during sentencing, since counsel, in his statement, did not act as a witness against defendant and did not take a position adverse to defendant’s plea withdrawal motion, which the court had already decided (see People v Burgos, 298 AD2d 190 [2002], lv denied 99 NY2d 580 [2003]).

Defendant knowingly and intelligently waived his right to appeal, and this waiver encompassed his excessive sentence claim (see People v Hidalgo, 91 NY2d 733 [1998]). Therefore, defendant “elect[ed] to foreclose review of [his] negotiated sentence” (People v Seaberg, 74 NY2d 1, 10 [1989]). In any event, were we to find that defendant did not validly waive his right to appeal, we would perceive no basis for reducing the sentence. Concur— Tom, J.P., Mazzarelli, Saxe and Marlow, JJ.

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Judgment, Supreme Court, Bronx County (William Donnino, J.), rendered June 17, 2002, convicting defendant, upon his plea of guilty, of robbery in the third degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.

The court properly exercised its discretion in denying defendant’s motion to withdraw his guilty plea, after affording defendant sufficient opportunity to present his claims. The court [117]*117was thoroughly familiar with the proceedings, including the plea allocution, and the record supports its finding that defendant’s claims were unfounded (see e.g. People v Frederick, 45 NY2d 520 [1978]; People v Clendinen, 240 AD2d 298 [1997], lv denied 90 NY2d 903 [1997]).

Defendant was not deprived of his rights to effective assistance of counsel and conflict-free representation by a statement made by counsel during sentencing, since counsel, in his statement, did not act as a witness against defendant and did not take a position adverse to defendant’s plea withdrawal motion, which the court had already decided (see People v Burgos, 298 AD2d 190 [2002], lv denied 99 NY2d 580 [2003]).

Defendant knowingly and intelligently waived his right to appeal, and this waiver encompassed his excessive sentence claim (see People v Hidalgo, 91 NY2d 733 [1998]). Therefore, defendant “elect[ed] to foreclose review of [his] negotiated sentence” (People v Seaberg, 74 NY2d 1, 10 [1989]). In any event, were we to find that defendant did not validly waive his right to appeal, we would perceive no basis for reducing the sentence. Concur— Tom, J.P., Mazzarelli, Saxe and Marlow, JJ.

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4 A.D.3d 116, 770 N.Y.S.2d 862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-clendinen-nyappdiv-2004.

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