Opinion
1151 KA 19-01736
02-04-2022
The PEOPLE of the State of New York, Respondent, v. Tyrik STYLES, Defendant-Appellant.
IRA M. PESSERILO, SYRACUSE, FOR DEFENDANT-APPELLANT. GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
IRA M. PESSERILO, SYRACUSE, FOR DEFENDANT-APPELLANT.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a plea of guilty of attempted promoting prison contraband in the first degree ( Penal Law §§ 110.00, 205.25 [2] ), defendant contends that defense counsel was ineffective for failing to communicate with him and for failing to consider a possible psychiatric defense. We affirm.
Initially, we note that the documents submitted in support of defendant's CPL 440.10 motion are not properly part of the record before us because defendant did not obtain leave to appeal from the denial of that motion (see People v. Rodriguez , 115 A.D.3d 580, 581, 982 N.Y.S.2d 466 [1st Dept. 2014], lv denied 23 N.Y.3d 967, 988 N.Y.S.2d 574, 11 N.E.3d 724 [2014] ; cf. People v. Fuller , 124 A.D.3d 1394, 1395, 998 N.Y.S.2d 554 [4th Dept. 2015], lv denied 25 N.Y.3d 989, 10 N.Y.S.3d 532, 32 N.E.3d 969 [2015] ).
Defendant's contention that he "was denied effective assistance of counsel survives his plea ‘only insofar as he demonstrates 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. Rivera , 195 A.D.3d 1591, 1591, 145 N.Y.S.3d 910 [4th Dept. 2021], lv denied 37 N.Y.3d 995, 152 N.Y.S.3d 402, 174 N.E.3d 342 [2021] ; see People v. Molski , 179 A.D.3d 1540, 1540-1541, 118 N.Y.S.3d 870 [4th Dept. 2020], lv denied 35 N.Y.3d 972, 125 N.Y.S.3d 7, 148 N.E.3d 471 [2020] ). Here, the plea transcript demonstrates that, although defendant was dissatisfied with the limited communication between himself and defense counsel, he was firm in his decision to accept the plea offer—which was favorable—and he did not desire any further communication with defense counsel. Moreover, although there were brief and unspecific references to defendant's mental health issues prior to the plea proceeding, defendant stated that he was "fully alert" at the time of the plea and that he understood the proceedings against him. Finally, to the extent that defendant's contention is based upon off-the-record communications between defendant and defense counsel, it is properly the subject of a CPL article 440 motion (see People v. Jones , 147 A.D.3d 1521, 1521-1522, 47 N.Y.S.3d 621 [4th Dept. 2017], lv denied 29 N.Y.3d 1033, 62 N.Y.S.3d 302, 84 N.E.3d 974 [2017]; People v. Rausch , 126 A.D.3d 1535, 1536, 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] ).