Opinion
403 KA 19-02061
06-12-2020
The PEOPLE of the State of New York, Respondent, v. Dustyn LIEPKE, Defendant-Appellant.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DARIENN P. BALIN OF COUNSEL), FOR RESPONDENT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DARIENN P. BALIN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, LINDLEY, CURRAN, AND DEJOSEPH, 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 controlled substance in the second degree ( Penal Law § 220.18 [1] ). By failing to move to withdraw the guilty plea or to vacate the judgment of conviction, defendant failed to preserve for our review his challenge to the factual sufficiency of the plea allocution as well as his contention that his plea was not voluntarily, knowingly, and intelligently entered (see People v. Turner, 175 A.D.3d 1783, 1784, 109 N.Y.S.3d 528 [4th Dept. 2019], lv denied 34 N.Y.3d 1082, 116 N.Y.S.3d 177, 139 N.E.3d 835 [2019] ; People v. Jones, 175 A.D.3d 1845, 1845-1846, 109 N.Y.S.3d 774 [4th Dept. 2019], lv denied 34 N.Y.3d 1078, 116 N.Y.S.3d 132, 139 N.E.3d 790 [2019] ; People v. Yates, 173 A.D.3d 1849, 1849-1850, 103 N.Y.S.3d 728 [4th Dept. 2019] ). Defendant also contends that he was deprived of a speedy trial pursuant to CPL 30.30. Defendant forfeited that contention inasmuch as he pleaded guilty before County Court issued a determination with respect to that part of his omnibus motion seeking to dismiss the indictment on that ground (see CPL 30.30 [6] ; see generally People v. Fernandez, 67 N.Y.2d 686, 688, 499 N.Y.S.2d 919, 490 N.E.2d 838 [1986] ).
Defendant's contention that he was denied effective assistance of counsel because of defense counsel's failure to challenge the validity of the subject search warrants also does not survive the guilty plea because defendant made " ‘no showing that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of his attorney['s] allegedly poor performance’ " ( People v. Russell, 55 A.D.3d 1314, 1314, 864 N.Y.S.2d 587 [4th Dept. 2008], lv denied 11 N.Y.3d 930, 874 N.Y.S.2d 15, 902 N.E.2d 449 [2009] ; see People v. Coleman, 178 A.D.3d 1377, 1378, 112 N.Y.S.3d 679 [4th Dept. 2019] ; People v. Smith , 122 A.D.3d 1300, 1301, 995 N.Y.S.2d 881 [4th Dept. 2014], lv denied 35 N.Y.3d 1172, 15 N.Y.S.3d 303, 36 N.E.3d 106 [2015] ). In any event, that contention lacks merit because any such challenge had " ‘little or no chance of success’ " ( People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ). Contrary to defendant's contention, even assuming, arguendo, that the police officers failed to comply with the inventory provisions of CPL 690.50 (5), we conclude that noncompliance with that subdivision "does not undermine the validity of the search warrant or the search" ( People v. Fernandez, 61 A.D.3d 891, 891, 878 N.Y.S.2d 92 [2d Dept. 2009], lv denied 13 N.Y.3d 744, 886 N.Y.S.2d 98, 914 N.E.2d 1016 [2009] ; see People v. Nelson, 144 A.D.2d 714, 716, 535 N.Y.S.2d 132 [3d Dept. 1988], lv denied 73 N.Y.2d 894, 538 N.Y.S.2d 806, 535 N.E.2d 1346 [1989] ). Although defendant's remaining claims of ineffective assistance of counsel survive his guilty plea, we conclude that they are without merit. Defendant failed to " ‘demonstrate the absence of strategic or other legitimate explanations’ for counsel's alleged shortcomings" ( People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ).
Contrary to defendant's further contention, the sentence is not unduly harsh or severe. We agree with defendant and the People correctly concede, however, that the sentence and commitment form should be amended because it incorrectly reflects that defendant was sentenced as a second felony offender when he was actually sentenced as a second felony drug offender (see People v. Ortega, 175 A.D.3d 1810, 1811, 109 N.Y.S.3d 800 [4th Dept. 2019] ; People v. Oberdorf , 136 A.D.3d 1291, 1292-1293, 24 N.Y.S.3d 545 [4th Dept. 2016], lv denied 27 N.Y.3d 1073, 38 N.Y.S.3d 843, 60 N.E.3d 1209 [2016] ). Finally, although not raised by the parties, we conclude that the certificate of conviction should be amended as well because it does not clearly provide that defendant was sentenced as a second felony drug offender (see generally People v. Dehoyos, 166 A.D.3d 1576, 1577-1578, 87 N.Y.S.3d 778 [4th Dept. 2018], lv denied 33 N.Y.3d 1068, 105 N.Y.S.3d 37, 129 N.E.3d 357 [2019] ; People v. Carducci, 143 A.D.3d 1260, 1263, 38 N.Y.S.3d 678 [4th Dept. 2016], lv denied 28 N.Y.3d 1143, 52 N.Y.S.3d 295, 74 N.E.3d 680 [2017] ).