Opinion
2012-05-8
The PEOPLE, etc., respondent, v. Virginia GIBSON, appellant.
Salvatore C. Adamo, New York, N.Y., for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas Constant of counsel), for respondent.
Salvatore C. Adamo, New York, N.Y., for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas Constant of counsel), for respondent.
REINALDO E. RIVERA, J.P., RANDALL T. ENG, CHERYL E. CHAMBERS, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Braslow, J.), rendered February 10, 2011, convicting her of attempted burglary in the second degree, upon her plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that her plea of guilty was not knowingly, voluntarily, and intelligently made is unpreserved for appellate review, since she did not move to withdraw her plea on this ground prior to the imposition of sentence ( seeCPL 220.60[3], 470.05[2]; 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. Hayes, 91 A.D.3d 792, 936 N.Y.S.2d 902;People v. Kulmatycski, 83 A.D.3d 734, 920 N.Y.S.2d 670;People v. Rusielewicz, 45 A.D.3d 704, 846 N.Y.S.2d 243). Furthermore, the “rare case” exception to the preservation requirement does not apply here because the defendant's plea allocution did not cast significant doubt on her guilt, negate an essential element of the crime, or call into question the voluntariness of her plea ( see People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;People v. Ortiz, 89 A.D.3d 1113, 933 N.Y.S.2d 609,lv. denied18 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;People v. Deyes, 3 A.D.3d 575, 576, 770 N.Y.S.2d 662). In any event, the record reveals that the defendant's plea was factually sufficient, and was entered knowingly, voluntarily, and intelligently ( see People v. Harris, 61 N.Y.2d 9, 471 N.Y.S.2d 61, 459 N.E.2d 170). Moreover, the defendant's post-plea statements of innocence made to her probation officer that appear in the presentence investigation report did not warrant vacatur of her plea ( see People v. Dixon, 29 N.Y.2d 55, 57, 323 N.Y.S.2d 825, 272 N.E.2d 329;People v. Ingram, 80 A.D.3d 713, 714, 914 N.Y.S.2d 316;People v. Tinsley, 32 A.D.3d 447, 820 N.Y.S.2d 305;People v. Morales, 17 A.D.3d 487, 795 N.Y.S.2d 240;People v. Eaton, 14 A.D.3d 577, 789 N.Y.S.2d 194).
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 or to withdraw as counsel is without merit. There can be no deprivation of effective assistance of counsel arising from counsel's failure to make a motion that, as here, had little or no chance of success ( see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213;People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698;People v. Ingram, 80 A.D.3d at 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). Furthermore, the record reveals that the defendant received an advantageous plea, and nothing in the record casts doubt on the apparent effectiveness of counsel ( see Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674;People v. Henry, 95 N.Y.2d 563, 566, 721 N.Y.S.2d 577, 744 N.E.2d 112;People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265;People v. Yarborough, 83 A.D.3d 875, 920 N.Y.S.2d 681; People v. Watt, 82 A.D.3d 912, 912–913, 918 N.Y.S.2d 347;People v. Moss, 74 A.D.3d 1360, 903 N.Y.S.2d 265).