Opinion
11769
May 22, 2003.
Appeal from a judgment of the County Court of Albany County (Rosen, J.), rendered April 7, 1999, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.
Eugene P. Devine, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant.
Paul A. Clyne, District Attorney, Albany (Bradley A. Sherman of counsel), for respondent.
Before: Spain, J.P., Carpinello, Rose, Lahtinen and Kane, JJ.
MEMORANDUM AND ORDER
Defendant was indicted on charges of criminal possession of a controlled substance in the first degree, criminal possession of a controlled substance in the third degree and criminal use of drug paraphernalia in the second degree (two counts) after a search of premises associated with defendant uncovered a quantity of cocaine, a scale and plastic baggies. Defendant moved to suppress this evidence, but before a suppression hearing could be held, defendant entered a negotiated plea of guilty to the crime of criminal possession of a controlled substance in the third degree in full satisfaction of the indictment. Defendant, a second felony offender, was sentenced in accordance with the plea agreement to a prison term of 4½ to 9 years. Defendant now appeals.
Initially, defendant's challenge to the voluntariness of his plea is unpreserved for our review because defendant did not move to withdraw his plea or to vacate the judgment of conviction (see People v. Barnes, 302 A.D.2d 623, 623, 753 N.Y.S.2d 760, 761; People v. Fulford, 296 A.D.2d 661, 662; People v. Doty, 267 A.D.2d 616, 617). In any event, County Court conducted a thorough plea colloquy, ascertaining that defendant was thinking clearly, was not under duress and understood the nature and consequences of his guilty plea. Further, defendant admitted committing acts satisfying each element of the crime of criminal possession of a controlled substance in the third degree (see Penal Law § 220.16). Accordingly, we conclude that defendant's plea was knowing, voluntary and intelligent.
We reject defendant's claim of ineffective assistance of counsel, which is predicated on counsel's failure to make certain pretrial motions and allegedly deficient discussions with defendant. Notably, defendant did not make a CPL 440.10 motion by which a record of counsel's preparations and client consultations could have been developed (see People v. Jones, 55 N.Y.2d 771, 773; People v. Gregory, 290 A.D.2d 810, 811, lv denied 98 N.Y.2d 675; People v. Paige, 289 A.D.2d 872, 873, lv denied 97 N.Y.2d 759). Further, counsel's failure to make a particular pretrial motion does not, in itself, constitute ineffective assistance (see People v. Rivera, 71 N.Y.2d 705, 709; People v. Rodriguez, 303 A.D.2d 783, 785-786 [Mar. 6, 2003], slip opn p 4; People v. Paige,supra). Viewing the totality of the circumstance of this case, and in light of the favorable plea agreement and reduction in defendant's sentencing exposure, we conclude that counsel provided meaningful representation (see People v. Ford, 86 N.Y.2d 397, 404; People v. Baldi, 54 N.Y.2d 137, 147;People v. Crippa, 245 A.D.2d 811, 812, lv denied 92 N.Y.2d 850). Defendant's remaining contentions have been considered and found to be unavailing.
Spain, J.P., Carpinello, Rose and Lahtinen, JJ., concur.
ORDERED that the judgment is affirmed.