Opinion
8 KA 17–00268
02-01-2019
The PEOPLE of the State of New York, Respondent, v. Jason J. KESTER, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt 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 burglary in the second degree ( Penal Law § 140.25 [2 ] ). To the extent that defendant's challenge to the effectiveness of defense counsel is properly before us, that challenge is without merit because counsel did not take a position adverse to him at sentencing with respect to a potential motion to withdraw the guilty plea (see People v. Adams, 66 A.D.3d 1355, 1356, 886 N.Y.S.2d 525 [4th Dept. 2009], lv denied 13 N.Y.3d 858, 891 N.Y.S.2d 692, 920 N.E.2d 97 [2009] ; People v. Mohomed, 52 A.D.3d 1262, 1263, 859 N.Y.S.2d 818 [4th Dept. 2008], lv denied 11 N.Y.3d 791, 866 N.Y.S.2d 618, 896 N.E.2d 104 [2008] ; see also People v. Bethany, 144 A.D.3d 1666, 1669, 42 N.Y.S.3d 495 [4th Dept. 2016], lv denied 29 N.Y.3d 996, 57 N.Y.S.3d 717, 80 N.E.3d 410 [2017], cert. denied ––– U.S. ––––, 138 S.Ct. 1571, 200 L.Ed.2d 760 [2018] ). To the contrary, defense counsel merely conveyed defendant's own decision to forgo such a motion, and counsel's assessment of the potential merits thereof served to underscore the rationality of defendant's decision in that regard. Finally, although the People correctly concede that defendant's waiver of his right to appeal "this conviction" does not foreclose his challenge to the severity of his sentence (see People v. Maracle, 19 N.Y.3d 925, 927–928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 [2012] ), we nevertheless conclude that the sentence is not unduly harsh or severe.