People v. Dixon

Appellate Division of the Supreme Court of New York

People v. Dixon

305 A.D.2d 1020, 758 N.Y.S.2d 587, 2003 N.Y. App. Div. LEXIS 4695

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

DecidedMay 2, 2003

StatusPublished

Cited by1 cases

This text of 305 A.D.2d 1020 (People v. Dixon) 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.

Bluebook

People v. Dixon, 305 A.D.2d 1020, 758 N.Y.S.2d 587, 2003 N.Y. App. Div. LEXIS 4695 (N.Y. Ct. App. 2003).

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Opinion

—Appeal from a judgment of Steuben County Court (Bradstreet, J.), entered February 25, 2002, convicting defendant upon his plea of guilty of burglary in the third degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

[1021]*1021Memorandum: On appeal from a judgment convicting him upon his plea of guilty of burglary in the third degree (Penal Law § 140.20), defendant contends that reversal is required because his factual allocution negated an essential element of the crime, i.e., entry into the building. The waiver by defendant of his right to appeal encompasses that contention (see People v Harris, 233 AD2d 959 [1996], lv denied 89 NY2d 1094 [1997]; People v Zimmerman, 219 AD2d 848 [1995], lv denied 88 NY2d 856 [1996]). Defendant further contends that he was denied effective assistance of counsel when he made a pro se motion to withdraw his plea and County Court heard and denied the motion in the absence of defense counsel (see e.g. People v Allen, 301 AD2d 874 [2003]). Although the court should have reserved decision on defendant’s motion until defense counsel was present, the error was cured when the court afforded defendant a second opportunity to be heard on the motion in the presence of defense counsel before sentencing defendant. Present — Pigott, Jr., P.J., Green, Pine, Burns and Gorski, JJ.

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—Appeal from a judgment of Steuben County Court (Bradstreet, J.), entered February 25, 2002, convicting defendant upon his plea of guilty of burglary in the third degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

[1021]*1021Memorandum: On appeal from a judgment convicting him upon his plea of guilty of burglary in the third degree (Penal Law § 140.20), defendant contends that reversal is required because his factual allocution negated an essential element of the crime, i.e., entry into the building. The waiver by defendant of his right to appeal encompasses that contention (see People v Harris, 233 AD2d 959 [1996], lv denied 89 NY2d 1094 [1997]; People v Zimmerman, 219 AD2d 848 [1995], lv denied 88 NY2d 856 [1996]). Defendant further contends that he was denied effective assistance of counsel when he made a pro se motion to withdraw his plea and County Court heard and denied the motion in the absence of defense counsel (see e.g. People v Allen, 301 AD2d 874 [2003]). Although the court should have reserved decision on defendant’s motion until defense counsel was present, the error was cured when the court afforded defendant a second opportunity to be heard on the motion in the presence of defense counsel before sentencing defendant. Present — Pigott, Jr., P.J., Green, Pine, Burns and Gorski, JJ.

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Bluebook (online)

305 A.D.2d 1020, 758 N.Y.S.2d 587, 2003 N.Y. App. Div. LEXIS 4695, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-dixon-nyappdiv-2003.

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