People v. Turck, 305 A.D.2d 1072 (N.Y. App. Div. 2003). · Go Syfert
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People v. Turck, 305 A.D.2d 1072 (N.Y. App. Div. 2003). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases, last quoted 2010 · …the waiver was knowing and voluntary, and there is no indication that it was elicited in order to 'conceal error or prosecutorial overreaching' that occurred at trial at p. 1072 ✓
17 citation events (17 in the last 25 years) across 2 distinct courts.
Top citers, strongest first. 14 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Miller
N.Y. App. Div. · 2018 · confidence medium
Moreover, defendant failed to demonstrate the absence of a strategic or other legitimate explanation for defense counsel's discussion of the waiver inasmuch as the record establishes that the prosecutor had already prepared a written waiver prior to the proceeding and that defendant benefitted from the waiver [*2]insofar as it secured the court's sentencing commitment to a range far lower than the maximum sentence ( see People v Turck , 305 AD2d 1072, 1073 [4th Dept 2003], lv denied 100 NY2d 566 [2003]).
discussed Cited as authority (rule) People v. Thompson
NY · 2013 · confidence medium
The record here provides no basis for concluding that Peters’s presence on the jury prejudiced defendant (see People v Turck, 305 AD2d 1072, 1073 [4th Dept 2003]; People v Driscoll, 251 AD2d 759, 761 [3d Dept 1998]; People v Thomas, 244 AD2d 271 [1st Dept 1997]).
discussed Cited as authority (rule) People v. Alexander
N.Y. App. Div. · 2013 · confidence medium
Defendant failed to establish the absence of a strategic reason for defense counsel’s failure to exercise any challenges during voir dire (see generally People v Benevento, 91 NY2d 708, 712 [1998]; People v Turck, 305 AD2d 1072, 1073 [2003], lv denied 100 NY2d 566 [2003]).
discussed Cited as authority (rule) People v. Alexander
N.Y. App. Div. · 2013 · confidence medium
Defendant failed to establish the absence of a strategic reason for defense counsel’s failure to exercise any challenges during voir dire (see generally People v Benevento, 91 NY2d 708, 712 [1998]; People v Turck, 305 AD2d 1072, 1073 [2003], lv denied 100 NY2d 566 [2003]).
discussed Cited as authority (rule) People v. Wlasiuk
N.Y. App. Div. · 2011 · confidence medium
Moreover, while the failure to challenge a prospective juror for cause generally does not, in itself, constitute ineffective assistance of counsel (see People v Turck, 305 AD2d 1072, 1073 [2003], lv denied 100 NY2d 566 [2003]), defense counsel further erred in consenting to the jury’s consideration of exhibit RRRR, without a limiting instruction.
discussed Cited as authority (rule) People v. Allick
N.Y. App. Div. · 2010 · confidence medium
“The waiver was knowing and voluntary, and there is no indication that it was elicited in order to ‘conceal error or prosecutorial overreaching’ that occurred at trial” (People v Turck, 305 AD2d 1072, 1072 [2003], lv denied 100 NY2d 566 [2003]; see People v Haupt, 16 AD3d 1079 [2005], lv denied 5 NY3d 763 [2005]).
discussed Cited as authority (rule) People v. Cipriani
N.Y. App. Div. · 2009 · confidence medium
Moreover, “[t]here is nothing offensive, constitutionally, statutorily or as a matter of policy, in permitting a defendant to waive [his or her] rights to appeal from judgments of more than one conviction ... in situations such as this, irrespective of whether [the negotiated] plea stems from charges closely connected to those of which defendant was found guilty after trial” (People v Holmes, 294 AD2d 871, 871-872 [2002], lv denied 98 NY2d 730 [2002] [internal quotation marks and cita tions omitted]; accord People v Povoski, 55 AD3d 1221, 1221-1222 [2008]; see People v Lee, 50 AD3d 702, 70…
discussed Cited as authority (rule) People v. Gruttadauria
N.Y. App. Div. · 2007 · confidence medium
The record fails to show that the defense counsel’s performance was ineffective (see People v Turck, 305 AD2d 1072, 1073 [2003]; People v Cortez, 296 AD2d 465, 465-466 [2002]; People v Cumberbatch, 200 AD2d 376 [1994]).
discussed Cited as authority (rule) People v. Haupt
N.Y. App. Div. · 2005 · confidence medium
“The waiver was knowing and voluntary, and there is no indication that it was elicited in order to ‘conceal error or prosecutorial overreaching’ that occurred at trial” (People v Turck, 305 AD2d 1072, 1072 [2003], lv denied 100 NY2d 566 [2003], quoting People v Boykin, 281 AD2d 708, 708 [2001]).
discussed Cited "see" People v. Hulme
N.Y. App. Div. · 2017 · signal: see · confidence high
We note that defendant is not challenging the fact that his waiver of the right to appeal was knowing and voluntary (see People v Allick, 72 AD3d 1615, 1616 [2010]; see generally People v Turck, 305 AD2d 1072, 1072 [2003], lv denied 100 NY2d 566 [2003]); instead, he contends that the waiver is invalid on public policy grounds because it insulates from appellate review the ineffective assistance that he allegedly received in a prior reckless endangerment case, i.e., the case in which he committed perjury.
discussed Cited "see" HULME, NATHAN, PEOPLE v
N.Y. App. Div. · 2017 · signal: see · confidence high
We note that defendant is not challenging the fact that his waiver of the right to appeal was knowing and voluntary (see People v Allick, 72 AD3d 1615, 1616 ; see generally People v Turck, 305 AD2d 1072, 1072 , lv denied 100 NY2d 566 ); instead, he contends that the waiver is invalid on public policy grounds because it insulates from appellate review the ineffective assistance that he allegedly received in a prior reckless endangerment case, i.e., the case in which he committed perjury.
discussed Cited "see" People v. Hulme
N.Y. App. Div. · 2017 · signal: see · confidence high
We note that defendant is not challenging the fact that his waiver of the right to appeal was knowing and voluntary (see People v Allick, 72 AD3d 1615, 1616 [2010]; see generally People v Turck, 305 AD2d 1072, 1072 [2003], lv denied 100 NY2d 566 [2003]); instead, he contends that the waiver is invalid on public policy grounds because it insulates from appellate review the ineffective assistance that he allegedly received in a prior reckless endangerment case, i.e., the case in which he committed perjury.
discussed Cited "see" People v. Rivera
N.Y. App. Div. · 2007 · signal: see · confidence high
In any event, even assuming, arguendo, that defense counsel erred in failing to join in the prosecutor’s challenge for cause to the prospective juror, we conclude that defense counsel’s “single failing in an otherwise competent performance” did not deny defendant effective assistance of counsel (Turner, 5 NY3d at 480 ; see People v Turck, 305 AD2d 1072, 1073 [2003], lv denied 100 NY2d 566 [2003]).
discussed Cited "see, e.g." People v. Davis
N.Y. App. Div. · 2005 · signal: see also · confidence medium
There was no basis to challenge the juror for cause, and under the circumstances of this case, the failure to challenge a particular juror does not indicate ineffectiveness of counsel (see People v Thomas, 244 AD2d 271 [1997], lv denied 91 NY2d 898 [1998]; see also People v Turck, 305 AD2d 1072, 1073 [2003], lv denied 100 NY2d 566 [2003]).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Andrew Turck
Appellate Division of the Supreme Court of the State of New York.
May 2, 2003.
305 A.D.2d 1072
Cited by 16 opinions  |  Published

—Appeal from a judgment of Lewis County Court (McGuire, J.), entered September 7, 2000, convicting defendant after a jury trial of, inter alia, robbery 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 after a jury trial of burglary in the second degree (Penal Law § 140.25 [2]), robbery in the second degree (§ 160.10 [1]), and petit larceny (§ 155.25). Contrary to the contention of defendant, his waiver of the right to appeal, entered in connection with the conviction herein and a plea agreement in satisfaction of six indictments and a superior court information, is enforceable. The waiver was knowing and voluntary, and there is no indication that it was elicited in order to “conceal error or prosecutorial overreaching” that occurred at trial (People v Boykin, 281 AD2d 708, 708 [2001]; see People v Holmes, 294 AD2d 871, 872 [2002], lv denied 98 NY2d 730 [2002]). In fact, defendant initiated the waiver of the right to appeal with the[*1073] apparent motive to minimize his period of incarceration, and he was in fact sentenced to concurrent terms of incarceration. To the extent that defendant contends that he received ineffective assistance of counsel because defense counsel had defendant waive his right to appeal, that contention is without merit. Defendant received a benefit as a result of the waiver, i.e., a shorter period of incarceration, and thus defendant failed to demonstrate the absence of a strategic or other legitimate explanation for the waiver (see generally People v Benevento, 91 NY2d 708, 712 [1998]).

Defendant further contends that defense counsel was ineffective in failing to challenge a prospective juror for cause or to exercise a peremptory challenge with respect to that prospective juror. Even assuming, arguendo, that defendant’s contention survives the waiver of the right to appeal, we conclude that it is without merit. Defense counsel’s alleged failure in that respect does not by itself constitute ineffective assistance (see People v Hinton, 302 AD2d 1008 [2003]). While defense counsel’s representation may not have been error-free, the record as a whole establishes that it was meaningful (see People v Baldi, 54 NY2d 137, 147 [1981]; People v Workman, 277 AD2d 1029, 1032 [2000], lv denied 96 NY2d 764 [2001]; People v Claitt, 222 AD2d 1038 [1995], lv denied 88 NY2d 982 [1996]). County Court did not inform defendant of the potential period of incarceration and thus the waiver of the right to appeal does not encompass defendant’s challenge to the severity of the sentence (see People v Webb, 299 AD2d 955 [2002], lv denied 99 NY2d 565 [2002]; see generally People v Lococo, 92 NY2d 825, 827 [1998]). The sentence, however, is neither unduly harsh nor severe. Defendant’s remaining contentions do not survive the waiver of the right to appeal (see People v Govan, 199 AD2d 815, 816 [1993], lv denied 83 NY2d 853 [1994]; People v Korona, 197 AD2d 788, 790-791 [1993], to denied 82 NY2d 926 [1994]). Present — Pigott, Jr., P.J., Hurlbutt, Scudder, Lawton and Hayes, JJ.