Opinion
105918
05-28-2015
The PEOPLE of the State of New York, Respondent, v. Desmond L. JACKSON, Appellant.
John P.M. Wappett, Public Defender, Lake George (Nellie R. Halloran of counsel), for appellant, and appellant pro se. Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.
John P.M. Wappett, Public Defender, Lake George (Nellie R. Halloran of counsel), for appellant, and appellant pro se.
Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.
Before: McCARTHY, J.P., EGAN JR., DEVINE and CLARK, JJ.
Opinion
McCARTHY, J.P.Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered February 27, 2013, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.
Defendant waived indictment, pleaded guilty to a superior court information (hereinafter SCI) charging him with criminal possession of a controlled substance in the third degree and waived his right to appeal. Prior to sentencing, defendant moved pro se to withdraw his guilty plea, contending that he received ineffective assistance of counsel. County Court denied defendant's motion and, in accordance with the plea agreement, sentenced defendant, as a second felony offender, to a prison term of seven years followed by three years of postrelease supervision. Defendant now appeals.
We affirm. Defendant's claim that the SCI charging him with criminal possession of a controlled substance in the third degree was jurisdictionally defective survives his guilty plea and appeal waiver (see People v. Brothers, 123 A.D.3d 1240, 1240, 999 N.Y.S.2d 225 [2014] ; People v. Martinez, 106 A.D.3d 1379, 1379, 966 N.Y.S.2d 562 [2013], lv. denied 22 N.Y.3d 957, 977 N.Y.S.2d 188, 999 N.E.2d 553 [2013] ). Here, the SCI erroneously denominated the crime charged as Penal Law § 220.16(1), rather than Penal Law § 220.16(12). Upon our review, however, we find that the record establishes that this was solely a typographical error as the facts alleged in the SCI made clear that the crime intended to be charged was Penal Law § 220.16(12) (see People v. Ashley, 89 A.D.3d 1283, 1285, 933 N.Y.S.2d 134 [2011], lv. denied 18 N.Y.3d 955, 944 N.Y.S.2d 483, 967 N.E.2d 708 [2012] ; People v. Sterling, 27 A.D.3d 950, 951–952, 811 N.Y.S.2d 212 [2006], lv. denied 6 N.Y.3d 898, 817 N.Y.S.2d 633, 850 N.E.2d 680 [2006] ; People v. Miller, 23 A.D.3d 699, 701, 803 N.Y.S.2d 734 [2005], lv. denied 6 N.Y.3d 815, 812 N.Y.S.2d 455, 845 N.E.2d 1286 [2006] ).
Defendant's ineffective assistance of counsel claim, to the extent that it implicates the voluntariness of his guilty plea, survives his appeal waiver and has been properly preserved by his motion to withdraw his plea (see People v. Ramey, 123 A.D.3d 1290, 1290, 996 N.Y.S.2d 793 [2014], lv. denied 25 N.Y.3d 953, 7 N.Y.S.3d 282, 30 N.E.3d 173 [2015] ; People v. Cavallaro, 123 A.D.3d 1221, 1223, 998 N.Y.S.2d 516 [2014] ). Nevertheless, defendant's specific claims of ineffective assistance of counsel are without support in the record. In this context, “a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel” (People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995] ; see People v. Wares, 124 A.D.3d 1079, 1080, 2 N.Y.S.3d 270 [2015], lv. denied 25 N.Y.3d 993, 10 N.Y.S.3d 536, 32 N.E.3d 973 [2015] ; People v. Ramey, 123 A.D.3d at 1290–1291, 996 N.Y.S.2d 793 ). Here, the record discloses that defense counsel, among other things, secured a favorable plea deal for defendant and vociferously advocated against sentencing defendant as a second felony offender. Further, nothing in the record—from the commencement of his criminal case to the completion of his advantageous plea—casts doubt upon counsel's effectiveness. Defendant's claim that his counsel should have made various motions amounts to no more than second-guessing his counsel's legitimate legal strategy given that such motions would likely have been denied as without merit (see People v. Benevento, 91 N.Y.2d 708, 712–713, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; People v. Wares, 124 A.D.3d at 1081, 2 N.Y.S.3d 270 ; People v. Jones, 101 A.D.3d 1241, 1242–1243, 955 N.Y.S.2d 694 [2012], lv. denied 21 N.Y.3d 944, 968 N.Y.S.2d 6, 990 N.E.2d 140 [2013] ). Accordingly, we find that defendant received meaningful representation.
Defendant's valid appeal waiver-which he does not take issue with on appeal—precludes his challenge to the factual sufficiency of his plea allocution (see People v. Sibounhome, 125 A.D.3d 1059, 1060, 3 N.Y.S.3d 192 [2015] ; People v. Devault, 124 A.D.3d 1140, 1141, 1 N.Y.S.3d 579 [2015], lv. denied 25 N.Y.3d 989, 10 N.Y.S.3d 532, 32 N.E.3d 969 [2015] ), his claim of prosecutorial misconduct (see People v. Debberman, 113 A.D.3d 929, 929, 978 N.Y.S.2d 448 [2014] ) and his assertion that his agreed-upon sentence was harsh and excessive (see People v. Hall, 125 A.D.3d 1095, 1097, 4 N.Y.S.3d 619 [2015] ; People v. Campo, 125 A.D.3d 1058, 1059, 999 N.Y.S.2d 774 [2015] ).
ORDERED that the judgment is affirmed.
EGAN JR., DEVINE and CLARK, JJ., concur.