Opinion
2015-01-2
The PEOPLE of the State of New York, Respondent, v. Jerome WILLIAMS, Defendant–Appellant.
Charles J. Greenberg, Amherst, for Defendant–Appellant. Barry L. Porsch, District Attorney, Waterloo, for Respondent.
Charles J. Greenberg, Amherst, for Defendant–Appellant. Barry L. Porsch, District Attorney, Waterloo, for Respondent.
PRESENT: SMITH, J.P., CENTRA, FAHEY, LINDLEY, and WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon his plea of guilty, of aggravated harassment of an employee by an inmate (Penal Law § 240.32). As the People correctly concede, defendant's purported waiver of the right to appeal is invalid ( see People v. Khan, 291 A.D.2d 898, 898–899, 737 N.Y.S.2d 738). By failing to move to withdraw the plea or to vacate the judgment of conviction, defendant failed to preserve for our review his contention that, based on his alleged mental illness, his guilty plea was not voluntarily, knowingly and intelligently entered ( see People v. Carpenter, 13 A.D.3d 1193, 1194, 786 N.Y.S.2d 683, lv. denied4 N.Y.3d 797, 795 N.Y.S.2d 172, 828 N.E.2d 88). This case does not fall within the rare exception to the preservation requirement because the plea colloquy did not “clearly cast[ ] significant doubt upon the defendant's guilt or otherwise call[ ] into question the voluntariness of the plea” (People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5; see Carpenter, 13 A.D.3d at 1194, 786 N.Y.S.2d 683). Nor does the presentence report cast significant doubt on the voluntariness of the plea. “A history of prior mental illness or treatment does not itself call into question defendant's competence ... [, and t]here is no indication in the record that defendant was unable to understand the proceedings or that he was mentally incompetent at the time he entered his guilty plea” (People v. Robinson, 39 A.D.3d 1266, 1267, 833 N.Y.S.2d 814, lv. denied9 N.Y.3d 869, 840 N.Y.S.2d 898, 872 N.E.2d 1204 [internal quotation marks omitted] ). “Defendant was asked a number of questions during the plea proceedings to which he responded coherently and rationally, and there is no indication that defendant was unable to understand the implications of his decision to accept the plea offer” (People v. Shackelford, 100 A.D.3d 1527, 1528, 954 N.Y.S.2d 336, lv. denied21 N.Y.3d 1009, 971 N.Y.S.2d 261, 993 N.E.2d 1284).
Insofar as defendant contends that he was denied effective assistance of counsel based on defense counsel's failure to investigate his history of mental illness and potential defenses, that contention involves matters outside the record on appeal and therefore must be raised by way of a motion pursuant to CPL article 440 ( see People v. Dizak, 93 A.D.3d 1182, 1185, 940 N.Y.S.2d 408, lv. denied19 N.Y.3d 972, 950 N.Y.S.2d 355, 973 N.E.2d 765, reconsideration denied20 N.Y.3d 932, 957 N.Y.S.2d 691, 981 N.E.2d 288). Finally, we reject defendant's further contention that he was denied effective assistance of counsel because defense counsel failed to move to withdraw defendant's plea based on information regarding defendant's history of mental illness contained in the presentence report. There is no basis upon which to conclude that defendant did not enter the plea knowingly, voluntarily and intelligently, and it is well settled that “[t]here can be no denial of effective assistance of [defense] counsel arising from counsel's failure to ‘make a motion or argument that has little or no chance of success' ” (People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213, quoting People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883, rearg. denied3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671; see People v. Keith, 26 A.D.3d 879, 880, 808 N.Y.S.2d 536, lv. denied6 N.Y.3d 835, 814 N.Y.S.2d 83, 847 N.E.2d 380).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.