Opinion
No. 814 KA 22-00405
11-17-2023
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. PAUL B. BOVEE, DEFENDANT-APPELLANT.
RYAN JAMES MULDOON, AUBURN, FOR DEFENDANT-APPELLANT. BRITTANY GROME ANTONACCI, DISTRICT ATTORNEY, AUBURN, FOR RESPONDENT
RYAN JAMES MULDOON, AUBURN, FOR DEFENDANT-APPELLANT.
BRITTANY GROME ANTONACCI, DISTRICT ATTORNEY, AUBURN, FOR RESPONDENT
PRESENT: SMITH, J.P., BANNISTER, GREENWOOD, NOWAK, AND DELCONTE, JJ.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), rendered October 28, 2021. The judgment convicted defendant upon his plea of guilty of menacing a police officer or peace officer and possession of an imitation controlled substance with intent to sell it.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of menacing a police officer or peace officer (Penal Law § 120.18) and possession of an imitation controlled substance with intent to sell it (Public Health Law § 3383 [2]). We affirm.
Defendant did not move to withdraw the plea or to vacate the judgment of conviction, and thus he failed to preserve for our review his challenge to the voluntariness of his plea (see People v Szymanski, 217 A.D.3d 1415, 1415 [4th Dept 2023], lv denied 40 N.Y.3d 952 [2023]; People v Roots, 201 A.D.3d 1364, 1365 [4th Dept 2022]; People v Caldero, 195 A.D.3d 1450, 1451 [4th Dept 2021], lv denied 37 N.Y.3d 1145 [2021]). Defendant's contention that he was denied effective assistance of counsel based on defense counsel's failure to file a motion to dismiss the indictment on speedy trial grounds survives his guilty plea "only insofar as he demonstrates 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 Cunningham, 213 A.D.3d 1270, 1271 [4th Dept 2023], lv denied 39 N.Y.3d 1110 [2023] [internal quotation marks omitted]; see People v Henry, 207 A.D.3d 1062, 1064 [4th Dept 2022], lv denied 39 N.Y.3d 940 [2022]; see generally People v Parson, 27 N.Y.3d 1107, 1108 [2016]).
To the extent that defendant's contention survives his plea, we conclude that it lacks merit. It is well settled that even a single error or failure to make an argument may amount to ineffective assistance of counsel, despite otherwise competent representation, where that error is sufficiently egregious and prejudicial (see generally People v McGee, 20 N.Y.3d 513, 518 [2013]; People v Turner, 5 N.Y.3d 476, 480 [2005]). "To rise to that level, the [failure to make a particular argument] must typically involve an issue that is so clear-cut and dispositive that no reasonable defense counsel would have failed to assert it," and it must be evident that the failure to advance that argument could not be grounded in legitimate strategy (McGee, 20 N.Y.3d at 518; see generally People v Caban, 5 N.Y.3d 143, 152 [2005]). Here, we conclude that "defendant's speedy trial argument is not 'clear cut,'" and, thus, defense counsel was not ineffective in failing to move to dismiss the indictment on that ground (People v Valentin, 183 A.D.3d 1271, 1272 [4th Dept 2020], lv denied 35 N.Y.3d 1049 [2020]; see People v Brunner, 16 N.Y.3d 820, 821 [2011]).
Finally, contrary to defendant's further contention, we conclude that the sentence is not unduly harsh or severe.