People v Neil

People v Neil 2013 NY Slip Op 08720 Released on December 27, 2013 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Released on December 27, 2013
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.
1251 KA 12-01819

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

DAVID O. NEIL, DEFENDANT-APPELLANT.


Appeal from a judgment of the Steuben County Court (Marianne Furfure, A.J.), rendered September 26, 2011. The judgment convicted defendant, upon his guilty plea, of attempted arson in the second degree.


KATHLEEN P. REARDON, ROCHESTER, FOR DEFENDANT-APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.


It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon his guilty plea, of attempted arson in the second degree (Penal Law §§ 110.00, 150.15). Even assuming, arguendo, that defendant's challenge to the factual sufficiency of the plea allocution has been preserved for our review (see generally People v Lopez, 71 NY2d 662, 665), we conclude that defendant's challenge lacks merit. Defendant "pleaded guilty to a crime lesser than that charged in the indictment," and thus no factual colloquy was required (People v Richards, 93 AD3d 1240, 1240, lv denied 20 NY3d 1014). Defendant further contends that he was denied effective assistance of counsel because defense counsel did not explore or address a possible defense of intoxication. Although defendant's contention "survives his guilty plea . . . to the extent that [he] contends that his plea was infected by the alleged ineffective assistance," we conclude that defendant received meaningful representation inasmuch as he received "an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel" (People v Nieves, 299 AD2d 888, 889, lv denied 99 NY2d 631 [internal quotation marks omitted]; see People v Campbell, 106 AD3d 1507, 1508, lv denied 21 NY3d 1002).
Entered: December 27, 2013
Frances E. Cafarell
Clerk of the Court