Opinion
KA 19–00114 1286
01-31-2020
The PEOPLE of the State of New York, Respondent, v. Joseph T. MOLSKI, Defendant–Appellant.
AMDURSKY, PELKY, FENNELL & WALLEN, P.C., OSWEGO (COURTNEY S. RADICK OF COUNSEL), FOR DEFENDANT–APPELLANT. GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.
AMDURSKY, PELKY, FENNELL & WALLEN, P.C., OSWEGO (COURTNEY S. RADICK OF COUNSEL), FOR DEFENDANT–APPELLANT.
GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND WINSLOW, 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 possessing a sexual performance by a child ( Penal Law § 263.16 ). Defendant's contention that he was denied effective assistance of counsel by counsel's performance during the investigatory phase prior to formal charges being brought against him survives his plea and valid waiver of the right to appeal insofar as defendant contends 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. Rausch, 126 A.D.3d 1535, 1535, 6 N.Y.S.3d 863 [4th Dept. 2015], lv denied 26 N.Y.3d 1149, 32 N.Y.S.3d 63, 51 N.E.3d 574 [2016] [internal quotation marks omitted]; see People v. Nichols, 21 A.D.3d 1273, 1274, 801 N.Y.S.2d 665 [4th Dept. 2005], lv denied 6 N.Y.3d 757, 810 N.Y.S.2d 425, 843 N.E.2d 1165 [2005] ). Nevertheless, defendant's contention lacks merit. The allegedly poor performance by counsel occurred during the preaccusatory stage, and therefore the right to effective assistance of counsel, which does not attach until after the commencement of formal adversarial judicial proceedings, did not apply (see People v. Claudio, 83 N.Y.2d 76, 78, 607 N.Y.S.2d 912, 629 N.E.2d 384 [1993], rearg dismissed 88 N.Y.2d 1007, 649 N.Y.S.2d 373, 672 N.E.2d 598 [1996] ; People v. Farrell, 42 A.D.3d 954, 955–956, 839 N.Y.S.2d 875 [4th Dept. 2007] ; People v. Anonymous, 299 A.D.2d 296, 297, 750 N.Y.S.2d 600 [1st Dept. 2002] ).
We likewise reject defendant's contention that County Court abused its discretion when it denied defendant's motion to withdraw his guilty plea on the ground of ineffective assistance of counsel. As discussed above, the right to effective assistance of counsel had not attached at the preaccusatory stage and, insofar as defendant contends that he was deprived of effective assistance of counsel after formal charges had been brought against him, "defendant's allegations in support of the motion are belied by [his] statements during the plea proceeding" ( People v. Barrett, 153 A.D.3d 1600, 1601, 62 N.Y.S.3d 653 [4th Dept. 2017], lv denied 30 N.Y.3d 1058, 71 N.Y.S.3d 8, 94 N.E.3d 490 [2017] ). Although defendant's remaining contention regarding the denial of his motion to withdraw his plea survives his waiver of the right to appeal (see generally People v. Steinbrecher, 169 A.D.3d 1462, 1463, 93 N.Y.S.3d 787 [4th Dept. 2019], lv denied 33 N.Y.3d 1108, 106 N.Y.S.3d 652, 130 N.E.3d 1262 [2019] ), that contention is not properly before us inasmuch as defendant did not move to withdraw the plea on that ground (see People v. Carlisle, 50 A.D.3d 1451, 1451, 856 N.Y.S.2d 410 [4th Dept. 2008], lv denied 10 N.Y.3d 957, 863 N.Y.S.2d 141, 893 N.E.2d 447 [2008] ).
Lastly, defendant's valid waiver of the right to appeal encompasses his challenge to the severity of his sentence (see People v. Niccloy, 151 A.D.3d 1740, 1740, 55 N.Y.S.3d 565 [4th Dept. 2017], lv denied 29 N.Y.3d 1131, 64 N.Y.S.3d 681, 86 N.E.3d 573 [2017] ; see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).