Opinion
KA 01-02128
November 15, 2002.
Appeal from a judgment of Steuben County Court (Furfure, J.), entered June 18, 2001, convicting defendant upon his plea of guilty of manslaughter in the second degree.
SALVATORE C. ADAMO, BUFFALO, FOR DEFENDANT-APPELLANT.
JOHN C. TUNNEY, DISTRICT ATTORNEY, BATH, FOR PLAINTIFF-RESPONDENT.
PRESENT: HAYES, J.P., HURLBUTT, KEHOE, BURNS, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
On appeal from a judgment convicting him upon his plea of guilty of manslaughter in the second degree (Penal Law § 125.15), defendant contends that he was denied effective assistance of counsel based on defense counsel's failure to make pretrial motions and that his plea therefore was not knowingly, voluntarily, or intelligently entered. Even assuming, arguendo, that the contention of defendant survives his guilty plea ( see People v. Brown, 284 A.D.2d 904, lv denied 96 N.Y.2d 916), we conclude that it lacks merit. "The failure to make pretrial motions does not, by itself, constitute ineffective assistance of counsel" ( People v. Jurjens, 291 A.D.2d 839, 840, lv denied 98 N.Y.2d 652; see People v. Distaffen, 275 A.D.2d 948, lv denied 95 N.Y.2d 934; People v. Waterman, 229 A.D.2d 1013). Here, defendant failed to make the requisite showing that defense counsel lacked "strategic or other legitimate explanations" for failing to make such motions ( People v. Rivera, 71 N.Y.2d 705, 709). The further contention of defendant that defense counsel did not have adequate information to advise him whether to plead guilty is not supported by the record. The plea minutes establish that both defense counsel and defendant received all of the information in the People's file pertaining to the case. Viewing the evidence, the law, and the circumstances of this case, in totality and as of the time of the representation, we conclude that defendant received meaningful representation ( see People v. Baldi, 54 N.Y.2d 137, 147). Finally, the bargained-for sentence is neither unduly harsh nor severe.