| People v Washington |
| 2011 NY Slip Op 04774 [85 AD3d 1303] |
| June 9, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v KeithWashington, Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Ulster County (Bruhn, J.),rendered April 23, 2009, convicting defendant upon his plea of guilty of the crime of attemptedrobbery in the second degree.
In March 2008, defendant, while under indictment, pleaded guilty to attempted robbery in thesecond degree in return for a promise from County Court that he would receive a six-month jailsentence to be followed by five years of probation if he did not become involved in any criminalactivity while awaiting sentence. When the court found that defendant had not honored thiscommitment, it stated that it was no longer bound by the terms of the plea agreement andsentenced defendant to a prison term of three years, plus three years of postrelease supervision.Defendant now appeals.
Defendant does not claim that County Court was obligated to impose the sentence promisedunder the original plea agreement; instead, he argues that his plea was invalid because CountyCourt, on one occasion during the plea allocution, asked him if he was pleading guilty toattempted robbery in the first degree, instead of attempted robbery in the second degree.Defendant failed to preserve this issue for appellate review because no objection was made to thecourt's statement during his plea allocution, nor has defendant moved to withdraw the plea orvacate the judgment of conviction (seePeople v Bolden, 78 AD3d 1419, 1420 [2010], lv denied [*2]16 NY3d 828 [2011]; People v Holmes, 75 AD3d 834, 835 [2010], lv denied 15NY3d 921 [2010]; People v Board,75 AD3d 833, 833 [2010]; People vBrown, 68 AD3d 1150, 1151 [2009]). Moreover, the narrow exception to thepreservation requirement is not applicable here as defendant made no statements during the pleathat "negate[d] an essential element of the crime" (People v Lopez, 71 NY2d 662, 666[1988]; see People v Hill, 81 AD3d1040 [2011]).
Similarly, his claim that counsel's failure to take appropriate steps to address this erroramounted to ineffective assistance of counsel is also unpreserved (see People v Lopez, 74 AD3d1498, 1499 [2010]; see also Peoplev Jeske, 55 AD3d 1057, 1058 [2008], lv denied 11 NY3d 898 [2008]). We alsonote that counsel's representation of defendant, especially given the favorable terms of the pleabargain he obtained on defendant's behalf, will not be deemed ineffective simply because counseldid not make a motion that had " 'little or no chance of success' " (People v Caban, 5 NY3d 143, 152[2005], quoting People v Stultz, 2NY3d 277, 287 [2004]; see Peoplev Carmona, 66 AD3d 1240, 1242 [2009], lv denied 14 NY3d 799[2010]).[FN*]To the extent not specifically addressed herein, defendant's remaining contentions have beenconsidered and found to be lacking in merit.
Mercure, J.P., Spain, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: We note that during defendant'splea allocution, County Court repeatedly correctly identified the crime to which defendant waspleading guilty and, during the allocution, defendant not only openly acknowledged his guilt, butadmitted to every element of this offense.