Opinion
06-14-2024
The PEOPLE of the State of New York, Respondent, v. George J. LEWIS, Defendant-Appellant.
TODD G. MONAHAN, LITTLE FALLS, FOR DEFENDANT-APPELLANT. KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (MORGAN R. MAYER OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Jefferson County Court (David A. Renzi, J.), rendered February 15, 2023. The judgment convicted defendant upon his plea of guilty of attempted criminal possession of a controlled substance in the third degree and grand larceny in the fourth degree.
TODD G. MONAHAN, LITTLE FALLS, FOR DEFENDANT-APPELLANT. KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (MORGAN R. MAYER OF COUNSEL), FOR RESPONDENT.
PRESENT: LINDLEY, J.P., CURRAN, BANNISTER, GREENWOOD, AND NOWAK, JJ.
MEMORANDUM AND ORDER
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 attempted criminal possession of a controlled substance in the third degree (Penal Law §§ 110.00, 220.16 [7]) and grand larceny in the fourth degree (§ 155.30 [2]). We affirm.
[1] Defendant contends that he was denied effective assistance of counsel. Insofar as defendant asserts that the alleged ineffectiveness infected his plea, defendant’s contention survives both the plea and the waiver of the right to appeal (see People v. Wood, 217 A.D.3d 1407, 1409-1410, 190 N.Y.S.3d 761 [4th Dept. 2023], lv denied 40 N.Y.3d 1000, 197 N.Y.S.3d 101, 219 N.E.3d 862 [2023]; People v. Rausch, 126 A.D.3d 1535, 1535, 6 N.Y.S.3d 863 [4th Dept. 2015], lv denied 26 N.Y.3d 1149, 32 N.Y.S.3d 63, 51 N.E.3d 574 [2016]), the validity of which defendant does not challenge.
[2] Defendant claims that defense counsel was ineffective in failing to inform him about his right to testify before the grand jury. Because the record on appeal does not reflect whether defense counsel informed defendant of that right, defendant’s contention "is based on matters outside the record and thus must be raised by way of a motion pursuant to CPL 440.10" (People v. Gaston, 100 A.D.3d 1463, 1466, 953 N.Y.S.2d 780 [4th Dept. 2012]; cf. People v. Mobley, 309 A.D.2d 605, 605, 765 N.Y.S.2d 775 [1st Dept. 2003], lv denied 1 N.Y.3d 599, 776 N.Y.S.2d 230, 808 N.E.2d 366 [2004]).
[3] Defendant further contends that, because three different assistant public defenders represented him at the three proceedings up to and including the plea, he was denied continuity of representation and, consequently, meaningful representation. We reject that contention. Defendant received "a favorable plea and has not demonstrated ‘the absence of strategic or other legitimate explanations’ for counsels’] alleged shortcomings" (People v. Shaw, 222 A.D.3d 1401, 1403, 202 N.Y.S.3d 626 [4th Dept. 2023], quoting People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988]; see People v. Griffin, 204 A.D.3d 1385, 1386, 166 N.Y.S.3d 767 [4th Dept. 2022]). Moreover, "[t]he mere fact that different attorneys assisted in … defendant’s case at different times does not render their assistance ineffective" (People v. Mejias, 293 A.D.2d 819, 820, 742 N.Y.S.2d 129 [3d Dept. 2002], lv denied 98 N.Y.2d 699, 747 N.Y.S.2d 418, 776 N.E.2d 7 [2002]; see People v. Pompey, 228 A.D.2d 720, 721, 643 N.Y.S.2d 429 [3d Dept. 1996], lv denied 88 N.Y.2d 992, 649 N.Y.S.2d 399, 672 N.E.2d 625 [1996]; see generally People v. Camacho, 16 N.Y.2d 1064, 1065, 266 N.Y.S.2d 135, 213 N.E.2d 464 [1965]). Here, "[t]he record as a whole reflects that [each] defense counsel provided reasonably competent assistance and … was diligent and conscientious" (People v. Dietz, 79 A.D.2d 476, 480, 437 N.Y.S.2d 185 [4th Dept. 1981]). 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 generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981]). [4] Finally, defendant contends that his enhanced sentence is unduly harsh and severe. As a preliminary matter, a challenge to the severity of an enhanced sentence imposed due to a defendant’s violation of the plea agreement is not encompassed by a waiver of the right to appeal where, as here, County Court " ‘failed to advise defendant of the potential period of incarceration that could be imposed’ for an enhanced sentence" (People v. Huggins, 45 A.D.3d 1380, 1381, 845 N.Y.S.2d 609 [4th Dept. 2007], lv denied 9 N.Y.3d 1006, 850 N.Y.S.2d 394, 880 N.E.2d 880 [2007]; see generally People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989]). Nevertheless, we conclude that the enhanced sentence imposed is not unduly harsh or severe.