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

1027
KA 11-00807
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

MICHAEL J. KEITZ, DEFENDANT-APPELLANT.


PETER O. EINSET, GENEVA, FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JASON A. MACBRIDE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (William F.
Kocher, J.), rendered January 5, 2011. 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 is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his guilty plea of assault in the second degree (Penal Law §
120.05 [7]). Defendant contends that he did not plead guilty or admit
guilt and thus that he was not convicted of the charge brought against
him. At the start of the plea proceeding, defendant agreed that he
would plead guilty to assault in the second degree. He indicated that
he was pleading guilty of his own free will and after having had
sufficient time to discuss it with his attorney. When County Court
asked defendant “[h]ow do you plead,” defendant responded “[y]es.”
Thereafter, the court asked defendant specific questions about the
charge, and defendant made various admissions. We conclude that the
plea allocution as a whole establishes that “defendant understood the
charges and made an intelligent decision to enter a plea” (People v
Goldstein, 12 NY3d 295, 301).

     To the extent that defendant’s contention that he was denied
effective assistance of counsel survives his guilty plea (see People v
Bethune, 21 AD3d 1316, 1316, lv denied 6 NY3d 752), we conclude that
it lacks merit. Defendant “receive[d] an advantageous plea and
nothing in the record casts doubt on the apparent effectiveness of
counsel” (People v Ford, 86 NY2d 397, 404).



Entered:    October 5, 2012                        Frances E. Cafarell
                                                   Clerk of the Court
