        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

851
KA 13-00614
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL N. BONAVITO, DEFENDANT-APPELLANT.


ANDREW C. LOTEMPIO, BUFFALO, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Kenneth F. Case,
J.), rendered November 1, 2012. The judgment convicted defendant,
upon his plea of guilty, of attempted criminal sexual act in the first
degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of attempted criminal sexual act in the first
degree (Penal Law §§ 110.00, 130.50 [3]). Contrary to defendant’s
contention, County Court did not abuse its discretion in denying his
motion to withdraw the plea (see People v Buske, 87 AD3d 1354, 1355,
lv denied 18 NY3d 882; People v Sparcino, 78 AD3d 1508, 1509, lv
denied 16 NY3d 746). “ ‘Permission to withdraw a guilty plea rests
solely within the court’s discretion . . . , and refusal to permit
withdrawal does not constitute an abuse of that discretion unless
there is some evidence of innocence, fraud, or mistake in inducing the
plea’ ” (People v Pillich, 48 AD3d 1061, 1061, lv denied 11 NY3d 793;
see People v Garner, 86 AD3d 955, 955; see generally People v Said,
105 AD3d 1392, 1393, lv denied 21 NY3d 1019). Here, defendant’s
contention that he was under the influence of prescription medication
at the time of the offense “did not constitute a protestation of
innocence or the assertion of a defense necessitating withdrawal of
the plea” (People v Legault, 180 AD2d 912, 913, lv denied 79 NY2d
1051; see People v Di Paola, 143 AD2d 487, 488), inasmuch as intent is
not an element of the crime of criminal sexual act in the first degree
based upon oral sexual conduct with a person under the age of 11 (see
People v Newton, 8 NY3d 460, 464; People v Washington, 156 AD2d 496,
496-497, lv denied 75 NY2d 925; Di Paola, 143 AD2d at 488; see
generally § 15.25).

     To the extent that defendant’s contention that he received
                                 -2-                           851
                                                         KA 13-00614

ineffective assistance of counsel survives his plea of guilty and
valid waiver of the right to appeal (see People v Strickland, 103 AD3d
1178, 1178), we conclude that it is without merit. “ ‘In the context
of a guilty plea, a defendant has been afforded meaningful
representation when he or she receives an advantageous plea and
nothing in the record casts doubt on the apparent effectiveness of
[defense] counsel’ ” (Garner, 86 AD3d at 956), and that is the case
here (see People v Jackson, 90 AD3d 1692, 1694, lv denied 18 NY3d 958;
People v Gross, 50 AD3d 1577, 1577).

      Finally, defendant’s challenge to the factual sufficiency of the
plea allocution is encompassed by his valid waiver of the right to
appeal (see People v Zimmerman, 100 AD3d 1360, 1361, lv denied 20 NY3d
1015; People v Branch, 49 AD3d 1206, 1206-1207, lv denied 10 NY3d
932).




Entered:   October 3, 2014                     Frances E. Cafarell
                                               Clerk of the Court
