Opinion
114 KA 19-02225
03-11-2022
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. DERRICK HARRIS, DEFENDANT-APPELLANT.
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KAITLYN M. GUPTILL OF COUNSEL), FOR RESPONDENT.
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KAITLYN M. GUPTILL OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, AND PERADOTTO, JJ.
Appeal from a judgment of the Onondaga County Court (Matthew J. Doran, J.), rendered November 20, 2019. The judgment convicted defendant upon a plea of guilty of attempted criminal possession of a weapon in the second degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his guilty plea of attempted criminal possession of a weapon in the second degree (Penal Law §§ 110.00, 265.03 [3]). We reject defendant's contention that County Court erred in refusing to suppress his statements to the police during an interview. The evidence presented at the suppression hearing demonstrated that defendant was twice informed of his Miranda rights, that he understood those rights, and that he was not under duress or undue influence when he made those statements (see People v Sanders, 171 A.D.3d 1460, 1461 [4th Dept 2019], lv denied 33 N.Y.3d 1108 [2019]). Under the circumstances of this case, the tactics used by the police in suggesting that others could be adversely affected if defendant did not admit to owning the subject handgun did not require suppression of defendant's statements (see People v Lewis, 93 A.D.3d 1264, 1265 [4th Dept 2012], lv denied 19 N.Y.3d 963 [2012]).
Defendant's further contention that his plea was not knowingly, intelligently, and voluntarily entered is not preserved for our review inasmuch as he did not move to withdraw the plea or to vacate the judgment of conviction on the grounds presently raised on appeal, nor did the court expressly decide the questions raised on appeal (see People v Barrett, 153 A.D.3d 1600, 1601 [4th Dept 2017], lv denied 30 N.Y.3d 1058 [2017]; see also People v Bentley, 191 A.D.3d 1392, 1392 [4th Dept 2021], lv denied 37 N.Y.3d 954 [2021]; People v Molski, 179 A.D.3d 1540, 1541 [4th Dept 2020], lv denied 35 N.Y.3d 972 [2020]). We reject defendant's contention that the court abused its discretion in denying his pro se motion to withdraw his guilty plea without conducting an evidentiary hearing or conducting a further inquiry into his allegation. As limited by defendant at sentencing, that motion was" 'patently insufficient on its face'" (People v Shorter, 179 A.D.3d 1445, 1446 [4th Dept 2020], lv denied 35 N.Y.3d 974 [2020]; see also People v Williams, 103 A.D.3d 1128, 1128-1129 [4th Dept 2013], lv denied 21 N.Y.3d 915 [2013]).
We likewise reject defendant's final contention that he was deprived of effective assistance of counsel. The record belies defendant's assertion that defense counsel failed to properly inform defendant of the circumstances and consequences of his plea (see generally People v Demus, 82 A.D.3d 1667, 1668 [4th Dept 2011], lv denied 17 N.Y.3d 815 [2011]). Contrary to defendant's further assertion, defense counsel's failure to join in defendant's pro se motion to withdraw the plea at sentencing did not constitute ineffective assistance (see People v Weinstock, 129 A.D.3d 1663, 1664 [4th Dept 2015], lv denied 26 N.Y.3d 1012 [2015]; People v Trombley, 91 A.D.3d 1197, 1202-1203 [3d Dept 2012], lv denied 21 N.Y.3d 914 [2013]; see generally People v Roberts, 121 A.D.3d 1530, 1532 [4th Dept 2014], lv denied 24 N.Y.3d 1122 [2015]).