People v Preister

People v Preister 2007 NY Slip Op 03456 [39 AD3d 1225] April 20, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 6, 2007

The People of the State of New York, Respondent, v Bruce Preister, Appellant.

—[*1] Lori Robb Monaghan, Rochester, for defendant-appellant.

Thomas E. Moran, District Attorney, Geneseo (Eric R. Schiener of counsel), for respondent.

Appeal from a judgment of the Livingston County Court (Gerard J. Alonzo, Jr., J.), rendered June 30, 2005. The judgment convicted defendant, upon his plea of guilty, of assault in the second degree.

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

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of assault in the second degree (Penal Law § 120.05 [2]). To the extent that the contention of defendant that he was denied effective assistance of counsel survives his plea of guilty (see People v Breen, 30 AD3d 1044 [2006], lv denied 7 NY3d 785 [2006]; People v Burke, 256 AD2d 1244 [1998], lv denied 93 NY2d 851 [1999]), we conclude that it is lacking in merit (see generally People v Ford, 86 NY2d 397, 404 [1995]). Defense counsel engaged in an active defense prior to negotiating the Alford plea, which was reasonable in its terms. Contrary to the further contention of defendant, the record establishes that his plea was knowingly, voluntarily and intelligently entered, and we conclude that County Court did not abuse its discretion in denying his motion to withdraw his plea (see generally People v Seeber, 4 NY3d 780 [2005]). Present—Gorski, J.P., Lunn, Fahey, Green and Pine, JJ.