People v. Soprano

PETERS, P.J.

John R. Trice, Elmira, for appellant.

Kirk O. Martin, Owego (Eric H. Gartenman of counsel), for respondent.

Opinion

PETERS, P.J.

Appeal from a judgment of the County Court of Tioga County (Keene, J.), rendered September 23, 2013, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fifth degree.

In satisfaction of a five-count indictment stemming from his possession of methamphetamine, defendant entered a guilty plea to criminal possession of a controlled substance

in the fifth degree under count 2 of the indictment. In accordance with the negotiated plea agreement, defendant was sentenced to a prison term of 1 ½ years followed by one year of postrelease supervision. Defendant appeals.

Defendant contends that he was denied the effective assistance of counsel in that counsel failed to pursue pretrial discovery or motions and did not move to suppress the evidence against him. As the record does not reflect that defendant made an appropriate postallocution motion, this claim was not preserved for our review (see People v. Jenkins, 130 A.D.3d 1091, 1091, 12 N.Y.S.3d 384 2015; People v. Broomfield, 128 A.D.3d 1271, 1272, 9 N.Y.S.3d 733 2015, lv. denied 26 N.Y.3d 1086, ––– N.Y.S.3d ––––, –––N.E.3d –––– 2015 ). Moreover, “[i]n 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 counsel” (People v. Sylvan, 108 A.D.3d 869, 870, 969 N.Y.S.2d 578 2013, lv. denied 22 N.Y.3d 1091, 981 N.Y.S.2d 676, 4 N.E.3d 978 2014 ). Under settled law, the “[f]ailure to request a suppression hearing or to make a pretrial motion does not, by itself, constitute ineffective assistance, particularly in the absence of

any basis upon which to conclude that a defendant had a colorable claim or that counsel's actions were not premised upon a legitimate strategy” ( People v. Vonneida, 130 A.D.3d 1322, 1322–1323, 13 N.Y.S.3d 708 2015, lv. denied 26 N.Y.3d 1093, ––– N.Y.S.3d ––––, ––– N.E.3d –––– 2015; see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 1998; People v. Cooper, 126 A.D.3d 1046, 1047–1048, 4 N.Y.S.3d 392 2015, lv. denied 26 N.Y.3d 966, 18 N.Y.S.3d 602, 40 N.E.3d 580 2015; cf. People v. Carnevale, 101 A.D.3d 1375, 1378–1381, 957 N.Y.S.2d 746 2012 ). Defendant assured County Court prior to the plea allocution that he had sufficient time to confer with counsel regarding the plea offer and that he was satisfied with counsel. Further, the record reflects that counsel secured a favorable plea deal and successfully argued against second felony offender sentencing. Thus, were the issue preserved, we would find that nothing in the record supports defendant's contention that he was deprived of meaningful representation ( see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 2005; People v. Benevento, 91 N.Y.2d 708, 712–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 1998; People v. Cooper, 126 A.D.3d at 1048, 4 N.Y.S.3d 392).

ORDERED that the judgment is affirmed.

GARRY, ROSE and DEVINE, JJ., concur.