Opinion
March 11, 1994
Appeal from the Steuben County Court, Scudder, J.
Present — Balio, J.P., Lawton, Doerr, Davis and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: There is no merit to the contention of defendant that the court erred in accepting his Alford plea (see, North Carolina v. Alford, 400 U.S. 25, 37). The prosecutor set forth on the record the proof that the People would offer at trial. That proof, coupled with the remarks of defense counsel and the admission by defendant that he was guilty of driving while intoxicated, constituted "strong evidence of actual guilt" of the crime of attempted reckless endangerment in the first degree (North Carolina v. Alford, supra, at 37; see also, People v. Friedman, 39 N.Y.2d 463, 466).
Defendant further contends that he was denied effective assistance of counsel because his trial counsel made no pretrial motions before advising defendant to plead guilty to two felonies. We disagree. The failure of counsel "to make a pretrial motion, even one that might be successful, does not, per se, constitute ineffective assistance of counsel" (People v. De Pillo, 168 A.D.2d 899, 900, lv denied 78 N.Y.2d 965; see, People v. Arnold, 188 A.D.2d 1020, lv denied 81 N.Y.2d 836). "To prevail, defendant must demonstrate that there was no legitimate explanation for counsel's failure to make the motion" (People v Duvall, 190 A.D.2d 988, lv denied 81 N.Y.2d 1013; see, People v Garcia, 75 N.Y.2d 973, 974; People v. Rivera, 71 N.Y.2d 705, 709). That burden has not been met in this case. Under the circumstances of this case, we conclude that defendant received meaningful representation (see, People v. Satterfield, 66 N.Y.2d 796, 798-799; People v. Baldi, 54 N.Y.2d 137, 147).