Opinion
862 KA 18-01780
10-02-2020
The PEOPLE of the State of New York, Respondent, v. Jesus CASTRO-UBILES, Defendant-Appellant.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER, THE SAGE LAW FIRM GROUP PLLC, BUFFALO (KATHRYN FRIEDMAN OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER, THE SAGE LAW FIRM GROUP PLLC, BUFFALO (KATHRYN FRIEDMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., NEMOYER, CURRAN, WINSLOW, AND BANNISTER, 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 criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ). Defendant contends that his waiver of the right to appeal is invalid and that he received ineffective assistance of counsel. Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid (see People v. Love , 181 A.D.3d 1193, 1193, 118 N.Y.S.3d 475 [4th Dept. 2020] ), we conclude that the judgment should be affirmed inasmuch as we reject defendant's contention that he was denied effective assistance of counsel (see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ; People v. Kosmetatos , 178 A.D.3d 1433, 1434, 115 N.Y.S.3d 789 [4th Dept. 2019], lv denied 35 N.Y.3d 994, 125 N.Y.S.3d 639, 149 N.E.3d 400 [2020] ). Moreover, defendant has not made the required showing, nor even alleged, that there is a reasonable probability "that he would have proceeded to trial absent counsel's alleged deficiencies" ( People v. Ware , 159 A.D.3d 1401, 1402, 72 N.Y.S.3d 676 [4th Dept. 2018], lv denied 31 N.Y.3d 1122, 81 N.Y.S.3d 382, 106 N.E.3d 765 [2018] ; see People v. Hernandez , 22 N.Y.3d 972, 975, 978 N.Y.S.2d 711, 1 N.E.3d 785 [2013], cert denied 572 U.S. 1070, 134 S.Ct. 1900, 188 L.Ed.2d 930 [2014] ).