Opinion
2014-07-3
The PEOPLE of the State of New York, Respondent, v. Lateek DAVIS, Defendant–Appellant. (Appeal No. 1.).
Williams, Heinl, Moody & Buschman, P.C., Auburn (Ryan James Muldoon of Counsel), for Defendant–Appellant. Lateek Davis, Defendant–Appellant pro se.
Williams, Heinl, Moody & Buschman, P.C., Auburn (Ryan James Muldoon of Counsel), for Defendant–Appellant. Lateek Davis, Defendant–Appellant pro se.
Jon E. Budelmann, District Attorney, Auburn (Nathan J. Garland of Counsel), for Respondent.
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, and WHALEN, JJ.
MEMORANDUM:
In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ) and, in appeal No. 2, he appeals from a judgment that also convicted him upon his plea of guilty of that crime. In both appeals, defendant contends in a pro se supplemental brief that he was denied effective assistance of counsel based on his attorney's failure to file motions or investigate the crime. Defendant's contention that he was denied effective assistance of counsel survives his guilty pleas only to the extent that “he contends that his plea[s were] infected by the allegedly ineffective assistance and that he entered the plea [s] because of his attorney's allegedly poor performance” ( People v. Bethune, 21 A.D.3d 1316, 1316, 801 N.Y.S.2d 196,lv. denied6 N.Y.3d 752, 810 N.Y.S.2d 420, 843 N.E.2d 1160;see People v. Jacques, 79 A.D.3d 1812, 1812, 913 N.Y.S.2d 609,lv. denied16 N.Y.3d 896, 926 N.Y.S.2d 31, 949 N.E.2d 979). With respect to defendant's contention that he was forced to plead guilty because defense counsel failed to file motions, the record reflects that defense counsel, with defendant'sconsent, repeatedly requested adjournments of the date for filing motions in order to pursue plea negotiations. “ ‘[I]t is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations' for [defense] counsel's alleged shortcomings” ( People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584, quoting People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698). Here, particularly in light of the evidence in the record establishing that defense counsel delayed in filing motions in order to arrange a plea agreement in accordance with defendant's wishes, we conclude that defendant failed to meet that burden ( see People v. Elamin, 82 A.D.3d 1664, 1665, 919 N.Y.S.2d 661,lv. denied17 N.Y.3d 794, 929 N.Y.S.2d 102, 952 N.E.2d 1097;People v. Jacobs, 52 A.D.3d 1182, 1184, 859 N.Y.S.2d 541,lv. denied11 N.Y.3d 926, 874 N.Y.S.2d 11, 902 N.E.2d 445). Further, to the extent that defendant contends that defense counsel was ineffective in failing to investigate the crimes, we note that such contention is based on matters outside the record and thus is not reviewable on direct appeal ( see People v. Cobb, 72 A.D.3d 1565, 1567, 900 N.Y.S.2d 224,lv. denied15 N.Y.3d 803, 908 N.Y.S.2d 162, 934 N.E.2d 896;People v. Washington, 39 A.D.3d 1228, 1230, 834 N.Y.S.2d 407,lv. denied9 N.Y.3d 870, 840 N.Y.S.2d 899, 872 N.E.2d 1205).
Contrary to defendant's contention in his main brief, his sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.