Opinion
2014-06-20
The PEOPLE of the State of New York, Respondent, v. Jason L. LOPER, Defendant–Appellant. (Appeal No. 1.).
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant. Brooks T. Baker, District Attorney, Bath (John C. Tunney of Counsel), for Respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant. Brooks T. Baker, District Attorney, Bath (John C. Tunney of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND WHALEN, JJ.
MEMORANDUM:
In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the third degree (Penal Law § 140.20) and, in appeal No. 2, he appeals from a judgment convicting him upon a nonjury verdict of attempted burglary in the third degree (§§ 110.00, 140.20). Defendant's contention in appeal No. 1 that his plea was not knowingly, voluntarily, or intelligently entered because his factual recitation did not specify when or where he committed the alleged crime is actually a challenge to the factual sufficiency of the plea allocution, and that contention is not preserved for our review because he did not move to withdraw his plea or to vacate the judgment of conviction on that ground. In any event, we note that defendant's “ ‘monosyllabic responses to [County Court's] questions did not render the plea invalid’ ” ( People v. Gordon, 98 A.D.3d 1230, 1230, 951 N.Y.S.2d 278,lv. denied20 N.Y.3d 932, 957 N.Y.S.2d 692, 981 N.E.2d 289).
With respect to defendant's contention in appeal No. 1 that the court erred in failing to permit him to withdraw his guilty plea, defendant abandoned that contention inasmuch as he withdrew his pro se motion to withdraw his plea ( see People v. Mower, 97 N.Y.2d 239, 246, 739 N.Y.S.2d 343, 765 N.E.2d 839;People v. Robbins, 83 A.D.3d 1531, 1531, 921 N.Y.S.2d 608,lv. denied17 N.Y.3d 821, 929 N.Y.S.2d 810, 954 N.E.2d 101). Defendant's further contention in appeal No. 1 that he was denied effective assistance of counsel “ ‘does not survive his guilty plea ... because there was no showing that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of his attorney['s] allegedly poor performance’ ” ( People v. Russell, 55 A.D.3d 1314, 1314, 864 N.Y.S.2d 587,lv. denied11 N.Y.3d 930, 874 N.Y.S.2d 15, 902 N.E.2d 449;see People v. Lugg, 108 A.D.3d 1074, 1075, 968 N.Y.S.2d 785). In any event, defendant received “an advantageous plea and nothing in the record casts doubt upon the apparent effectiveness of counsel” ( People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265;see People v. Davis, 99 A.D.3d 1228, 1229, 951 N.Y.S.2d 808,lv. denied20 N.Y.3d 1010, 960 N.Y.S.2d 353, 984 N.E.2d 328). We reject defendant's contention in appeal No. 2 that he was denied effective assistance of counsel. We conclude that defendant did not “ ‘demonstrate the absence of strategic or other legitimate explanations' ” for defense counsel's failure to introduce facts in opposition to the People's recitation of the facts at the nonjury trial on stipulated facts ( People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;see People v. Howard, 101 A.D.3d 1749, 1750–1751, 956 N.Y.S.2d 784,lv. denied21 N.Y.3d 944, 968 N.Y.S.2d 6, 990 N.E.2d 140).
Defendant failed to preserve for our review his contention in each appeal that the People failed to comply with the procedural requirements of CPL 400.21 when he was sentenced as a second felony offender ( see People v. Pellegrino, 60 N.Y.2d 636, 637, 467 N.Y.S.2d 355, 454 N.E.2d 938;People v. Butler, 96 A.D.3d 1367, 1368, 946 N.Y.S.2d 343,lv. denied20 N.Y.3d 931, 957 N.Y.S.2d 691, 981 N.E.2d 288). We nevertheless exercise our power to reach that contention as a matter of discretion in the interest of justice ( seeCPL 470.15[3][c] ). The People concede that they did not file a statement as required by CPL 400.21(2), and the record does not reflect that defendant admitted the prior felony in open court ( see People v. Butler, 105 A.D.3d 1408, 1409, 963 N.Y.S.2d 809,lv. denied21 N.Y.3d 1072, 974 N.Y.S.2d 321, 997 N.E.2d 146;cf. Butler, 96 A.D.3d at 1368, 946 N.Y.S.2d 343). We therefore modify the judgment in each appeal by vacating the sentence, and we remit the matter to County Court for the filing of a predicate felony offender statement pursuant to CPL 400.21 prior to resentencing ( see Butler, 105 A.D.3d at 1409–1410, 963 N.Y.S.2d 809).
It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by vacating the sentence imposed and as modified the judgment is affirmed, and the matter is remitted to Steuben County Court for the filing of a predicate felony offender statement and resentencing.