Opinion
2012-05-8
The PEOPLE, etc., respondent, v. Shareiff DAVIS, appellant.
Del Atwell, East Hampton, N.Y., for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
Del Atwell, East Hampton, N.Y., for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Dutchess County (Greller, J.), rendered June 3, 2011, convicting him of criminal possession of a weapon in the second degree and criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's challenge to the factual sufficiency of his plea allocution to criminal possession of a weapon in the second degree is unpreserved for appellate review ( see CPL 220.60[3]; 470.05[2]; People v. Toxey, 86 N.Y.2d 725, 726, 631 N.Y.S.2d 119, 655 N.E.2d 160; *771 People v. Claudio, 64 N.Y.2d 858, 487 N.Y.S.2d 318, 476 N.E.2d 644; People v. Ortiz, 89 A.D.3d 1113, 933 N.Y.S.2d 609, lv. denied 18 N.Y.3d 927, 942 N.Y.S.2d 466, 965 N.E.2d 968; People v. Young, 88 A.D.3d 918, 931 N.Y.S.2d 235). Furthermore, the “rare case” exception to the preservation requirement does not apply here because the defendant's allocution did not cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of his plea ( People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5; see People v. Ortiz, 89 A.D.3d at 1113, 933 N.Y.S.2d 609; People v. Young, 88 A.D.3d at 918, 931 N.Y.S.2d 235). In any event, the facts admitted by the defendant during his plea allocution were sufficient to support his plea of guilty to criminal possession of a weapon in the second degree ( see Penal Law §§ 265.00[15]; § 265.02[1]; § 265.03[3]; People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797; People v. Cavines, 70 N.Y.2d 882, 883, 524 N.Y.S.2d 178, 518 N.E.2d 1170).
By pleading guilty, the defendant forfeited appellate review of his claims of ineffective assistance of counsel that did not directly involve the plea-agreement process ( see People v. Petgen, 55 N.Y.2d 529, 535 n. 3, 450 N.Y.S.2d 299, 435 N.E.2d 669; People v. Collier, 71 A.D.3d 909, 910, 895 N.Y.S.2d 848; People v. Turner, 40 A.D.3d 1018, 1019, 834 N.Y.S.2d 666; People v. Silent, 37 A.D.3d 625, 831 N.Y.S.2d 194). Further, the defendant was not deprived of the effective assistance of counsel arising from his counsel's failure to challenge the factual sufficiency of his plea allocution, since any such challenge 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 sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).