record reflects defense in New York

2025Furthermore, contrary to the defendant's contention, he was not deprived of the effective assistance of counsel under the New York Constitution because, viewed in totality, the record reflects that defense counsel provided meaningful representation ( see People v Benevento , 91 NY2d 708, 712 ; People v Baldi , 54 NY2d 137, 146-147 ).

2025Viewed in totality, the record reflects that defense counsel provided meaningful representation ( see People v Benevento , 91 NY2d 708, 712 ).

2025Furthermore, contrary to the defendant's contention, he was not deprived of the effective assistance of counsel under the New York Constitution because, viewed in totality, the record reflects that defense counsel provided meaningful representation ( see People v Benevento , 91 NY2d 708, 712 ; People v Baldi , 54 NY2d 137, 146-147 ).

2023Consequently, the record reflects that defense counsel "pursued a rational trial strategy . . . and . . . provided defendant with meaningful representation" ( People v Keener , 152 AD3d 1073, 1076 [3d Dept 2017]; see generally People v Baldi , 54 NY2d 137, 147 [1981]).

2022The record reflects that a waiver of appeal was expressly made a condition of the plea agreement and that, during the plea allocution, County Court made clear that the waiver of appeal was separate and distinct from the trial-related rights automatically forfeited by the guilty plea ( see People v Lopez , 6 NY3d 248, 256 [2006]) and that some rights survive the appeal waiver ( see People v Thomas , 34 NY3d 545 , 558-563 [2019]).

2017Initially, defendant’s challenge to her sentence as harsh and excessive is not precluded by her waiver of appeal, as the record reflects that the waiver was not knowing, voluntary or intelligent (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Lemon, 137 AD3d 1422, 1423 [2016], lv denied 27 NY3d 1135 [2016]).

2014With respect to defendant’s contention that he was forced to plead guilty because defense counsel failed to file motions, the record reflects that defense counsel, with defendant’s consent, repeatedly requested adjournments of the date for filing motions in order to pursue plea negotiations. “ ‘[I]t is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations’ for [defense] counsel’s alleged shortcomings” (People v Benevento, 91 NY2d 708, 712 [1998], quoting People v Rivera, 71 NY2d 705, 709 [1988]).

2014With respect to defendant’s contention that he was forced to plead guilty because defense counsel failed to file motions, the record reflects that defense counsel, with defendant’s consent, repeatedly requested adjournments of the date for filing motions in order to pursue plea negotiations. “ ‘[I]t is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations’ for [defense] counsel’s alleged shortcomings” (People v Benevento, 91 NY2d 708, 712 [1998], quoting People v Rivera, 71 NY2d 705, 709 [1988]).

2020The defendant did not knowingly, voluntarily, and intelligently waive his right to appeal ( see People v Bradshaw , 18 NY3d 257, 264 ; People v Lopez , 6 NY3d 248, 256 ).

2017To that end, County Court’s brief reference to the waiver of appeal during the plea allocution impermissibly lumped the waiver in with trial-related rights automatically forfeited by defendant’s guilty plea and the court did not ascertain, on the record, that she understood the nature of her waiver of appellate rights (see People v Bradshaw, 18 NY3d 257, 264-265 [2011]; People v Lopez, 6 NY3d at 256-257 ).

2017Initially, defendant’s challenge to her sentence as harsh and excessive is not precluded by her waiver of appeal, as the record reflects that the waiver was not knowing, voluntary or intelligent (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Lemon, 137 AD3d 1422, 1423 [2016], lv denied 27 NY3d 1135 [2016]).

2017Initially, defendant’s challenge to her sentence as harsh and excessive is not precluded by her waiver of appeal, as the record reflects that the waiver was not knowing, voluntary or intelligent (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Lemon, 137 AD3d 1422, 1423 [2016], lv denied 27 NY3d 1135 [2016]).

2014Here, particularly in light of the evidence in the record establishing that defense counsel delayed in filing motions in order to arrange a plea agreement in accordance with defendant’s wishes, we conclude that defendant failed to meet that burden (see People v Elamin, 82 AD3d 1664, 1665 [2011], lv denied 17 NY3d 794 [2011]; People v Jacobs, 52 AD3d 1182, 1184 [2008], lv denied 11 NY3d 926 [2009] ).

2014Here, particularly in light of the evidence in the record establishing that defense counsel delayed in filing motions in order to arrange a plea agreement in accordance with defendant’s wishes, we conclude that defendant failed to meet that burden (see People v Elamin, 82 AD3d 1664, 1665 [2011], lv denied 17 NY3d 794 [2011]; People v Jacobs, 52 AD3d 1182, 1184 [2008], lv denied 11 NY3d 926 [2009] ).

2014Here, particularly in light of the evidence in the record establishing that defense counsel delayed in filing motions in order to arrange a plea agreement in accordance with defendant’s wishes, we conclude that defendant failed to meet that burden (see People v Elamin, 82 AD3d 1664, 1665 [2011], lv denied 17 NY3d 794 [2011]; People v Jacobs, 52 AD3d 1182, 1184 [2008], lv denied 11 NY3d 926 [2009] ).

2014Here, particularly in light of the evidence in the record establishing that defense counsel delayed in filing motions in order to arrange a plea agreement in accordance with defendant’s wishes, we conclude that defendant failed to meet that burden (see People v Elamin, 82 AD3d 1664, 1665 [2011], lv denied 17 NY3d 794 [2011]; People v Jacobs, 52 AD3d 1182, 1184 [2008], lv denied 11 NY3d 926 [2009] ).

2012Defendant has failed to show the absence of strategic or other legitimate explanations for the form of the questions used by defense counsel on cross-examination (see People v Caban, 5 NY3d 143, 152 [2005]; People v Rivera, 71 NY2d 705, 709 [1988]; People v Dozier, 94 AD3d 1226, 1228-1229 [2012]), and counsel’s choice of the manner of questioning the People’s witnesses does not amount to ineffective assistance (see People v Benevento, 91 NY2d at 712-713 ; People v Kuforiji, 88 AD3d 1165, 1167 [2011]).

2007Contrary to his assertions on appeal, the record reflects that defense counsel provided meaningful representation, obtaining dismissal of most counts in the indictment prior to trial and vigorously attacking the key witnesses’ testimony and credibility; counsel pursued a cogent albeit unsuccessful trial strategy of emphasizing shortcomings in the documentary and photographic evidence and implicating Deas as the perpetrator (see People v Caban, 5 NY3d at 152 ).

2024Defendant was therefore provided with meaningful representation ( see People v Reichel , 211 AD3d 1090 , 1091 [3d Dept 2022], lv denied 39 NY3d 1113 [2023]; People v Agan , 207 AD3d 861, 870 [3d Dept 2022], lvs denied 38 NY3d 1186 [2022], 39 NY3d 939 [2022]).

2024Defendant was therefore provided with meaningful representation ( see People v Reichel , 211 AD3d 1090 , 1091 [3d Dept 2022], lv denied 39 NY3d 1113 [2023]; People v Agan , 207 AD3d 861, 870 [3d Dept 2022], lvs denied 38 NY3d 1186 [2022], 39 NY3d 939 [2022]).

2024Moreover, "contrary to petitioner's claim that the Hearing Officer was biased, the record reflects that the hearing was conducted in a fair, deliberative and impartial manner, and we find that the determination [*2]of guilt flowed from the substantial evidence adduced at the hearing rather than from any alleged bias" ( Matter of Haigler v Lilley , 182 AD3d 888, 889 [3d Dept 2020]).

2020Contrary to petitioner's claim that the Hearing Officer was biased, the record reflects that the hearing was conducted in a fair and impartial manner and the determination resulted from the evidence that was adduced at the hearing ( see Matter of Haigler v Lilley , 182 AD3d 888, 889-890 [2020]; Matter of Joseph v Polizzi , 167 AD3d 1207 , 1208 [2018], lv denied 33 NY3d 903 [2019]).

2015Under these circumstances, we find that defendant received meaningful representation (see People v Wren, 119 AD3d 1291, 1292 [2014], lv denied 24 NY3d 1048 [2014]; People v Evans, 81 AD3d 1040, 1041 [2011], lv denied 16 NY3d 894 [2011]).

2015Under these circumstances, we find that defendant received meaningful representation (see People v Wren, 119 AD3d 1291, 1292 [2014], lv denied 24 NY3d 1048 [2014]; People v Evans, 81 AD3d 1040, 1041 [2011], lv denied 16 NY3d 894 [2011]).

2015Under these circumstances, we find that defendant received meaningful representation (see People v Wren, 119 AD3d 1291, 1292 [2014], lv denied 24 NY3d 1048 [2014]; People v Evans, 81 AD3d 1040, 1041 [2011], lv denied 16 NY3d 894 [2011]).

2015Under these circumstances, we find that defendant received meaningful representation (see People v Wren, 119 AD3d 1291, 1292 [2014], lv denied 24 NY3d 1048 [2014]; People v Evans, 81 AD3d 1040, 1041 [2011], lv denied 16 NY3d 894 [2011]).

2013Workers’ Compensation Law § 28 provides that the employer “shall be deemed to have waived the bar of the statute unless the objection to the failure to file the claim within two years is raised on the first hearing on such claim at which all parties in interest are present.” Inasmuch as the record reflects that the defense of untimeliness was raised at the first hearing at which all parties in interest were present, we find no reason to disturb the Board’s determination (see Matter of Neville v Magazine Distribs., Inc., 61 AD3d 1165, 1166 [2009], lv denied 12 NY3d 712 [2009]; Matter of Petitt

2013Workers’ Compensation Law § 28 provides that the employer “shall be deemed to have waived the bar of the statute unless the objection to the failure to file the claim within two years is raised on the first hearing on such claim at which all parties in interest are present.” Inasmuch as the record reflects that the defense of untimeliness was raised at the first hearing at which all parties in interest were present, we find no reason to disturb the Board’s determination (see Matter of Neville v Magazine Distribs., Inc., 61 AD3d 1165, 1166 [2009], lv denied 12 NY3d 712 [2009]; Matter of Petitt

2013Accordingly, upon viewing the totality of the record, we are satisfied that defendant received meaningful representation (see People v McRobbie, 97 AD3d 970, 972 [2012], lv denied 20 NY3d 934 [2012]; People v Fisher, 89 AD3d 1135, 1139 [2011], lv denied 18 NY3d 883 [2012]).

2013Accordingly, upon viewing the totality of the record, we are satisfied that defendant received meaningful representation (see People v McRobbie, 97 AD3d 970, 972 [2012], lv denied 20 NY3d 934 [2012]; People v Fisher, 89 AD3d 1135, 1139 [2011], lv denied 18 NY3d 883 [2012]).

2013Accordingly, upon viewing the totality of the record, we are satisfied that defendant received meaningful representation (see People v McRobbie, 97 AD3d 970, 972 [2012], lv denied 20 NY3d 934 [2012]; People v Fisher, 89 AD3d 1135, 1139 [2011], lv denied 18 NY3d 883 [2012]).

2013Accordingly, upon viewing the totality of the record, we are satisfied that defendant received meaningful representation (see People v McRobbie, 97 AD3d 970, 972 [2012], lv denied 20 NY3d 934 [2012]; People v Fisher, 89 AD3d 1135, 1139 [2011], lv denied 18 NY3d 883 [2012]).

2013Workers’ Compensation Law § 28 provides that the employer “shall be deemed to have waived the bar of the statute unless the objection to the failure to file the claim within two years is raised on the first hearing on such claim at which all parties in interest are present.” Inasmuch as the record reflects that the defense of untimeliness was raised at the first hearing at which all parties in interest were present, we find no reason to disturb the Board’s determination (see Matter of Neville v Magazine Distribs., Inc., 61 AD3d 1165, 1166 [2009], lv denied 12 NY3d 712 [2009]; Matter of Petitt

2013Workers’ Compensation Law § 28 provides that the employer “shall be deemed to have waived the bar of the statute unless the objection to the failure to file the claim within two years is raised on the first hearing on such claim at which all parties in interest are present.” Inasmuch as the record reflects that the defense of untimeliness was raised at the first hearing at which all parties in interest were present, we find no reason to disturb the Board’s determination (see Matter of Neville v Magazine Distribs., Inc., 61 AD3d 1165, 1166 [2009], lv denied 12 NY3d 712 [2009]; Matter of Petitt

2013Workers’ Compensation Law § 28 provides that the employer “shall be deemed to have waived the bar of the statute unless the objection to the failure to file the claim within two years is raised on the first hearing on such claim at which all parties in interest are present.” Inasmuch as the record reflects that the defense of untimeliness was raised at the first hearing at which all parties in interest were present, we find no reason to disturb the Board’s determination (see Matter of Neville v Magazine Distribs., Inc., 61 AD3d 1165, 1166 [2009], lv denied 12 NY3d 712 [2009]; Matter of Petitt

2013Workers’ Compensation Law § 28 provides that the employer “shall be deemed to have waived the bar of the statute unless the objection to the failure to file the claim within two years is raised on the first hearing on such claim at which all parties in interest are present.” Inasmuch as the record reflects that the defense of untimeliness was raised at the first hearing at which all parties in interest were present, we find no reason to disturb the Board’s determination (see Matter of Neville v Magazine Distribs., Inc., 61 AD3d 1165, 1166 [2009], lv denied 12 NY3d 712 [2009]; Matter of Petitt

2012Turning to petitioner’s procedural challenges, the record reflects that the hearing was timely commenced in view of petitioner’s keeplock status at the time the misbehavior report was issued (see 7 NYCRR 251-5.1 [a]; Matter of Serrano v Goord, 28 AD3d 838 [2006]) and, subsequently, a valid extension to complete the hearing was obtained (see 7 NYCRR 251-5.1 [b]; Matter of Thompson v Votraw, 65 AD3d 1403, 1404 [2009]).

2012Turning to petitioner’s procedural challenges, the record reflects that the hearing was timely commenced in view of petitioner’s keeplock status at the time the misbehavior report was issued (see 7 NYCRR 251-5.1 [a]; Matter of Serrano v Goord, 28 AD3d 838 [2006]) and, subsequently, a valid extension to complete the hearing was obtained (see 7 NYCRR 251-5.1 [b]; Matter of Thompson v Votraw, 65 AD3d 1403, 1404 [2009]).

2012Defendant has failed to show the absence of strategic or other legitimate explanations for the form of the questions used by defense counsel on cross-examination (see People v Caban, 5 NY3d 143, 152 [2005]; People v Rivera, 71 NY2d 705, 709 [1988]; People v Dozier, 94 AD3d 1226, 1228-1229 [2012]), and counsel’s choice of the manner of questioning the People’s witnesses does not amount to ineffective assistance (see People v Benevento, 91 NY2d at 712-713 ; People v Kuforiji, 88 AD3d 1165, 1167 [2011]).

2012Defendant has failed to show the absence of strategic or other legitimate explanations for the form of the questions used by defense counsel on cross-examination (see People v Caban, 5 NY3d 143, 152 [2005]; People v Rivera, 71 NY2d 705, 709 [1988]; People v Dozier, 94 AD3d 1226, 1228-1229 [2012]), and counsel’s choice of the manner of questioning the People’s witnesses does not amount to ineffective assistance (see People v Benevento, 91 NY2d at 712-713 ; People v Kuforiji, 88 AD3d 1165, 1167 [2011]).

2012Defendant has failed to show the absence of strategic or other legitimate explanations for the form of the questions used by defense counsel on cross-examination (see People v Caban, 5 NY3d 143, 152 [2005]; People v Rivera, 71 NY2d 705, 709 [1988]; People v Dozier, 94 AD3d 1226, 1228-1229 [2012]), and counsel’s choice of the manner of questioning the People’s witnesses does not amount to ineffective assistance (see People v Benevento, 91 NY2d at 712-713 ; People v Kuforiji, 88 AD3d 1165, 1167 [2011]).

2012Defendant has failed to show the absence of strategic or other legitimate explanations for the form of the questions used by defense counsel on cross-examination (see People v Caban, 5 NY3d 143, 152 [2005]; People v Rivera, 71 NY2d 705, 709 [1988]; People v Dozier, 94 AD3d 1226, 1228-1229 [2012]), and counsel’s choice of the manner of questioning the People’s witnesses does not amount to ineffective assistance (see People v Benevento, 91 NY2d at 712-713 ; People v Kuforiji, 88 AD3d 1165, 1167 [2011]).