Opinion
1247 KA 18-01865
02-11-2021
The PEOPLE of the State of New York, Respondent, v. Schwanika R. PATTERSON, Defendant-Appellant.
DANIEL M. GRIEBEL, TONAWANDA, FOR DEFENDANT-APPELLANT. SCHWANIKA R. PATTERSON, DEFENDANT-APPELLANT PRO SE. JEFFREY S. CARPENTER, DISTRICT ATTORNEY, HERKIMER (ROBERT R. CALLI, JR., OF COUNSEL), FOR RESPONDENT.
DANIEL M. GRIEBEL, TONAWANDA, FOR DEFENDANT-APPELLANT.
SCHWANIKA R. PATTERSON, DEFENDANT-APPELLANT PRO SE.
JEFFREY S. CARPENTER, DISTRICT ATTORNEY, HERKIMER (ROBERT R. CALLI, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty of burglary in the first degree ( Penal Law § 140.30 [2] ). We agree with defendant in her main brief that her purported waiver of the right to appeal is invalid (see People v. Thomas , 34 N.Y.3d 545, 565-566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020] ). Defendant's contentions in her main brief regarding the written waiver of indictment are " ‘forfeited by [her] guilty plea’ inasmuch as defendant ‘lodges no claim that [s]he lacked notice of the precise crime[s] for which [s]he waived prosecution by indictment’ " ( People v. Ramirez , 180 A.D.3d 1378, 1379, 115 N.Y.S.3d 725 [4th Dept. 2020], lv denied 35 N.Y.3d 973, 125 N.Y.S.3d 10, 148 N.E.3d 474 [2020] ).
Defendant further contends in her main brief that her plea was not knowingly and voluntarily entered. Because defendant did not move to withdraw the plea or to vacate the judgment of conviction, her contention is not preserved for our review (see People v. Brown , 115 A.D.3d 1204, 1205, 982 N.Y.S.2d 255 [4th Dept. 2014], lv denied 23 N.Y.3d 1060, 994 N.Y.S.2d 319, 18 N.E.3d 1140 [2014] ). Contrary to defendant's contention, this case does not fall within the rare exception to the preservation requirement set forth in People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 (1988) "inasmuch as nothing in the plea colloquy casts significant doubt on defendant's guilt or the voluntariness of the plea" ( People v. Lewandowski , 82 A.D.3d 1602, 1602, 919 N.Y.S.2d 623 [4th Dept. 2011] ). Moreover, we note that the court conducted further inquiry to ensure that the plea was knowingly and voluntarily entered (see Lopez , 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; Brown , 115 A.D.3d at 1206, 982 N.Y.S.2d 255 ).
To the extent that defendant's contention in her pro se supplemental brief that she did not receive effective assistance of counsel survives her plea of guilty (see People v. Wright , 66 A.D.3d 1334, 1334, 885 N.Y.S.2d 794 [4th Dept. 2009], lv denied 13 N.Y.3d 912, 895 N.Y.S.2d 326, 922 N.E.2d 915 [2009] ), we conclude that it lacks merit. Defense counsel secured an advantageous plea offer 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] ). Although defendant contends that she was denied effective assistance of counsel based on defense counsel's failure to make certain discovery demands and to conduct motion practice, we note that defendant has provided no indication that any such action would have produced a successful result, and "[i]t is well established that [t]here can be no denial of effective assistance of ... counsel arising from counsel's failure to make a motion or argument that has little or no chance of success" ( People v. Washington , 39 A.D.3d 1228, 1230, 834 N.Y.S.2d 407 [4th Dept. 2007], lv denied 9 N.Y.3d 870, 840 N.Y.S.2d 899, 872 N.E.2d 1205 [2007] [internal quotation marks omitted]). Furthermore, "[d]efense counsel's failure to file an omnibus motion does not, by itself, constitute ineffective assistance of counsel" ( People v. Willey , 48 A.D.3d 1097, 1098, 851 N.Y.S.2d 774 [4th Dept. 2008], lv denied 10 N.Y.3d 965, 863 N.Y.S.2d 149, 893 N.E.2d 455 [2008] ; see People v. Bueno , 299 A.D.2d 918, 918, 750 N.Y.S.2d 672 [4th Dept. 2002], lv denied 99 N.Y.2d 612, 757 N.Y.S.2d 823, 787 N.E.2d 1169 [2003] ). 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, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Finally, contrary to defendant's contentions in her main and pro se supplemental briefs, we conclude that the sentence is not unduly harsh or severe.