Opinion
106685
10-04-2018
The PEOPLE of the State of New York, Respondent, v. Thomas E. CROSS, Appellant.
Henry C. Meier, Delmar, for appellant. Stephen K. Cornwell Jr., District Attorney, Binghamton (Peter N. DeLucia of counsel), for respondent.
Henry C. Meier, Delmar, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Peter N. DeLucia of counsel), for respondent.
Before: Garry, P.J., Clark, Mulvey, Rumsey and Pritzker, JJ.
MEMORANDUM AND ORDER
Mulvey, J.
Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered December 9, 2013, convicting defendant upon his plea of guilty of the crime of reckless endangerment in the first degree.
In full satisfaction of a four-count indictment, defendant pleaded guilty to reckless endangerment in the first degree. County Court sentenced him, as a second felony offender, to 2 to 4 years in prison. Defendant now appeals.
We affirm. Defendant's claim that his plea allocution was factually insufficient as to depraved indifference, a required element of the crime of reckless endangerment in the first degree (see Penal Law § 120.25 ), is unpreserved for our review given that defendant failed to make an appropriate postallocution motion (see People v. Cook, 150 A.D.3d 1543, 1544, 52 N.Y.S.3d 680 [2017] ; People v. Griffith, 136 A.D.3d 1114, 1114, 25 N.Y.S.3d 400 [2016], lv denied 28 N.Y.3d 1184, 52 N.Y.S.3d 711, 75 N.E.3d 103 [2017] ). Moreover, defendant did not make any statements during the plea colloquy that cast doubt on his guilt or negated an essential element of the crime so as to trigger the narrow exception to the preservation rule (see People v. Johnson, 153 A.D.3d 1047, 1048, 59 N.Y.S.3d 866 [2017], lv denied 30 N.Y.3d 1061, 71 N.Y.S.3d 11, 94 N.E.3d 493 [2017] ; People v. Griffith, 136 A.D.3d at 1114–1115, 25 N.Y.S.3d 400 ). Defendant's claims that he was denied the effective assistance of counsel are not related to the plea bargaining process or the voluntariness of the plea and, therefore, are forfeited by his guilty plea (see People v. Petgen, 55 N.Y.2d 529, 534, 450 N.Y.S.2d 299, 435 N.E.2d 669 [1982] ; People v. Chappelle, 121 A.D.3d 1166, 1168, 994 N.Y.S.2d 435 [2014], lv denied 24 N.Y.3d 1118, 3 N.Y.S.3d 760, 27 N.E.3d 474 [2015] ; People v. Mercer, 81 A.D.3d 1159, 1160, 917 N.Y.S.2d 397 [2011], lv denied 19 N.Y.3d 999, 951 N.Y.S.2d 475, 975 N.E.2d 921 [2012] ). In any event, "[i]n the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record cast doubt upon the apparent effectiveness of counsel" and, were we to address these claims, we would conclude that defendant received meaningful representation ( People v. Case, 139 A.D.3d 1239, 1240, 31 N.Y.S.3d 663 [2016] [internal quotation marks and citation omitted], lv denied 28 N.Y.3d 928, 40 N.Y.S.3d 356, 63 N.E.3d 76 [2016] ).
ORDERED that the judgment is affirmed.
Garry, P.J., Clark, Rumsey and Pritzker, JJ., concur.