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

1251
KA 12-01819
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

DAVID O. NEIL, DEFENDANT-APPELLANT.


KATHLEEN P. REARDON, ROCHESTER, FOR DEFENDANT-APPELLANT.

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL),
FOR RESPONDENT.


     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.

     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
