Opinion
2013-00577
12-24-2014
The PEOPLE, etc., respondent, v. Jesika L. POLLIDORE, appellant.
Salvatore C. Adamo, New York, N.Y., for appellant. David M. Hoovler, District Attorney, Middletown, N.Y. (Elizabeth L. Schulz of counsel), for respondent.
Salvatore C. Adamo, New York, N.Y., for appellant.
David M. Hoovler, District Attorney, Middletown, N.Y. (Elizabeth L. Schulz of counsel), for respondent.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, and BETSY BARROS, JJ.
Opinion Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered August 30, 2012, convicting her of attempted burglary in the second degree, upon her plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the People's contention, the defendant did not validly waive her right to appeal (see People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Pressley, 116 A.D.3d 794, 983 N.Y.S.2d 322 ; People v. Keiser, 100 A.D.3d 927, 954 N.Y.S.2d 184 ).
Although the defendant's claims, that her plea of guilty was involuntary and that counsel's ineffectiveness affected the voluntariness of the plea, would survive even a valid waiver of the right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Duah, 91 A.D.3d 884, 936 N.Y.S.2d 907 ; People v. McLean, 77 A.D.3d 684, 908 N.Y.S.2d 352 ), the defendant is, in any event, not entitled to relief on her substantive claims.
The defendant's contention that her plea of guilty was not knowing, voluntary, or intelligent because the County Court failed to advise her of the constitutional rights that she was waiving upon her plea is unpreserved for appellate review, since she did not move to vacate her plea or otherwise raise this issue in the County Court (see People v. Clarke, 93 N.Y.2d 904, 906, 690 N.Y.S.2d 501, 712 N.E.2d 668 ; People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Jackson, 114 A.D.3d 807, 979 N.Y.S.2d 704 ; People v. Hayes, 91 A.D.3d 792, 936 N.Y.S.2d 902 ). Contrary to the defendant's contention, there is nothing in the record that casts significant doubt upon the defendant's guilt or calls into question the voluntariness of the plea (see People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). In any event, the record of the plea proceeding reveals that the County Court expressly advised the defendant of the constitutional rights that she was forfeiting by pleading guilty (see People v. Tyrell, 22 N.Y.3d 359, 981 N.Y.S.2d 336 ). Furthermore, the postplea statements attributed to the defendant in the presentence investigation report did not call into question the voluntariness of the plea and did not obligate the court to conduct a sua sponte inquiry into any alleged coercion (see People v. Solis, 111 A.D.3d 654, 974 N.Y.S.2d 132 ; People v. Appling, 94 A.D.3d 1135, 1136, 942 N.Y.S.2d 617 ; People v. Kelly, 50 A.D.3d 921, 854 N.Y.S.2d 674 ).
The defendant's contention that she was deprived of the effective assistance of counsel as a consequence of her attorney's failure to make a motion to withdraw her plea based on her postplea statements appearing in the presentence investigation report is without merit. There can be no deprivation of effective assistance of counsel arising from counsel's failure to make a motion that had little or no chance of success (see People v. Ingram, 80 A.D.3d 713, 714, 914 N.Y.S.2d 316 ; People v. Terrell, 78 A.D.3d 865, 910 N.Y.S.2d 368 ; People v. Goddard, 72 A.D.3d 839, 840, 898 N.Y.S.2d 637 ). The defendant has failed to show that defense counsel's performance fell below an objective standard of reasonableness and that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different” (Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 ). Furthermore, the record reveals that the defendant received an advantageous plea, and nothing in the record casts doubt on the effectiveness of counsel (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ; People v. Henry, 95 N.Y.2d 563, 566, 721 N.Y.S.2d 577, 744 N.E.2d 112 ; People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).