Opinion
07-26-2024
The PEOPLE of the State of New York, Respondent, v. Wyatt S. PENFOLD, Defendant-Appellant.
ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL), FOR DEFENDANT-APPELLANT. VINCENT A. HEMMING, ACTING DISTRICT ATTORNEY, WARSAW, FOR RESPONDENT.
Appeal from a judgment of the Wyoming County Court (Michael M. Mohun, J.), rendered April 21, 2022. The judgment convicted defendant upon a guilty plea of assault in the second degree.
ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL), FOR DEFENDANT-APPELLANT.
VINCENT A. HEMMING, ACTING DISTRICT ATTORNEY, WARSAW, FOR RESPONDENT.
PRESENT: LINDLEY, J.P., MONTOUR, OGDEN, KEANE, AND HANNAH, JJ. MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his guilty plea of assault in the second degree (Penal Law § 120.05 [3]), defendant contends that he was deprived of effective assistance of counsel because his attorney failed to file any motions, failed to request a hearing pursuant to People v. Outley, 80 N.Y.2d 702, 594 N.Y.S.2d 683, 610 N.E.2d 356 (1993), and failed to move to withdraw his plea when it became apparent that County Court would impose an enhanced sentence. We reject defendant’s contention. An attorney is not ineffective for failing to file motions that have " ‘little or no chance of success’ " (People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005]; see People v. Zona, 225 A.D.3d 1296, 1297-1298, 205 N.Y.S.3d 828 [4th Dept. 2024]), and defendant has not identified any motions that he believes would have been meritorious if filed on his behalf. With respect to defendant’s remaining complaints about defense counsel’s performance, we note that defendant stated on the record at sentencing that he did not wish to have an Outley hearing, which the court offered to conduct, and defense counsel stated, without contradiction by defendant, that defendant did not wish to withdraw his plea. Considering that defense counsel negotiated a seemingly favorable plea agreement, which involved the dismissal of two unrelated felony charges, we conclude, after viewing the evidence, the law and the circumstances of this case in totality and as of the time of the representation, that defendant was afforded meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981]).
Finally, defendant’s challenge to the severity of his enhanced sentence is precluded by his valid waiver of the right to appeal (see People v. May, 169 A.D.3d 1365, 1365, 91 N.Y.S.3d 744 [4th Dept. 2019]; see generally People v. Garcia, 155 A.D.3d 1570, 1571, 64 N.Y.S.3d 435 [4th Dept. 2017], lv denied 31 N.Y.3d 983, 77 N.Y.S.3d 661, 102 N.E.3d 438 [2018]).