Opinion
2012-11-16
The PEOPLE of the State of New York, Respondent, v. Juman L. SHACKELFORD, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Martin P. McCarthy, II, of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Martin P. McCarthy, II, of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon a plea of guilty of assault in the first degree (Penal Law § 120.10 [3] ), defendant contends that his plea was not knowingly entered because the factual allocution failed to establish that he acted with depraved indifference. Defendant's contention is not preserved for our review inasmuch as he did not move to withdraw his plea or to vacate the judgment of conviction ( see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;People v. Granger, 96 A.D.3d 1667, 1667, 947 N.Y.S.2d 868). In any event, the allocution was sufficient to establish that defendant acted with depraved indifference when he fired numerous shots from his 9 millimeter handgun into a house in which he had reason to believe people would be present ( see generally People v. Suarez, 6 N.Y.3d 202, 214, 811 N.Y.S.2d 267, 844 N.E.2d 721;People v. Payne, 3 N.Y.3d 266, 271–272, 786 N.Y.S.2d 116, 819 N.E.2d 634,rearg. denied3 N.Y.3d 767, 788 N.Y.S.2d 670, 821 N.E.2d 975). Contrary to the further contention of defendant, defense counsel's statements regarding his competency at sentencing do not cast doubt on the voluntariness of the plea. Defendant was asked a number of questions during the plea proceedings to which he responded coherently and rationally, and there is no indication that defendant was unable to understand the implications of his decision to accept the plea offer ( see generally People v. Wilcox, 45 A.D.3d 1320, 1320, 845 N.Y.S.2d 621,lv. denied10 N.Y.3d 772, 854 N.Y.S.2d 334, 883 N.E.2d 1269).
Defendant's contention that he was denied effective assistance of counsel does not survive the plea “because defendant failed to demonstrate 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. Wright, 66 A.D.3d 1334, 1334, 885 N.Y.S.2d 794,lv. denied 13 N.Y.3d 912, 895 N.Y.S.2d 326, 922 N.E.2d 915;see People v. Paduano, 84 A.D.3d 1730, 1731, 922 N.Y.S.2d 726). Finally, we reject defendant's contention that the pretrial identification procedure was unduly suggestive ( see People v. Sylvester, 32 A.D.3d 1226, 1226–1227, 821 N.Y.S.2d 345,lv. denied7 N.Y.3d 929, 827 N.Y.S.2d 698, 860 N.E.2d 1000;People v. Cunningham, 15 A.D.3d 945, 945–946, 788 N.Y.S.2d 790,lv. denied4 N.Y.3d 829, 796 N.Y.S.2d 584, 829 N.E.2d 677).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.