| People v Santos-Rivera |
| 2011 NY Slip Op 05988 [86 AD3d 790] |
| July 21, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JosueSantos-Rivera, Appellant. |
—[*1] James E. Conboy, District Attorney, Fonda (Kelli P. McCoski of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Montgomery County (Catena,J.), rendered December 1, 2008, convicting defendant upon his plea of guilty of the crime ofmurder in the second degree.
In satisfaction of a two-count indictment charging him with murder in the second degree andcriminal possession of a weapon in the second degree, defendant pleaded guilty to the top countand waived his right to appeal. He was sentenced pursuant to the plea agreement to a prison termof 22 years to life. Contending that he received the ineffective assistance of counsel, defendantnow appeals and we affirm.
As an initial matter, defendant's valid waiver of his right to appeal precludes his claim ofineffective assistance to the extent that it did not impact the voluntariness of his plea (see People v Buckler, 80 AD3d889, 890 [2011]; People vLeigh, 71 AD3d 1288, 1288 [2010], lv denied 15 NY3d 775 [2010]; People v McDuffie, 43 AD3d 559,560 [2007], lv denied 9 NY3d 992 [2007]).[FN1]Thus, defendant's contentions regarding counsel's performance at the suppression [*2]hearing and other pre-plea court appearances—which do notimplicate counsel's representation in such a way as directly affected the voluntariness ofdefendant's subsequent plea—are not properly considered when assessing his claim ofineffective assistance of counsel (see People v Buckler, 80 AD3d at 890; People v Gentry, 73 AD3d 1383,1384 [2010]; People v McDuffie, 43 AD3d at 560; see generally People v Parilla, 8 NY3d 654, 659-660 [2007]). Areview of the plea allocution reveals that defendant's plea was knowingly, voluntarily andintelligently made, and we note that defendant stated at the allocution that he had not beenpressured or coerced into pleading guilty and he was satisfied with the services of his counsel.Consequently, we are unpersuaded by defendant's claim that he was deprived of the effectiveassistance of counsel.
In any event, were we to assess counsel's representation on the record as a whole, we wouldfind defendant's contention to be without merit. "[F]or counsel to be effective, he or she mustprovide meaningful representation as shown by an examination of the totality of the evidence,facts and law" (People v Stevenson, 58 AD3d 948, 949 [2009], lv denied 12NY3d 860 [2009] [citations omitted]; see People v Jackson, 67 AD3d 1067, 1068 [2009], lvdenied 14 NY3d 801 [2010]; Peoplev Chrysler, 6 AD3d 812, 812-813 [2004]). The record discloses that counsel madeappropriate pretrial motions, adequately represented defendant at the suppression hearing (seePeople v Jackson, 67 AD3d at 1068; People v Stevenson, 58 AD3d at 949-950; People v Donaldson, 1 AD3d 800,801 [2003], lv denied 2 NY3d 739 [2004]) and, in light of the fact that defendant'sstatements to the police, including a confession, were not suppressed, "counsel's plea strategymight well have been pursued by any reasonably competent attorney" (People v Babcock,304 AD2d 912, 913 [2003]). Finally, to the extent that defendant's claim pertains to informationoutside the record—including defendant's assertions regarding counsel's failure toadequately investigate the circumstances surrounding his case[FN2]and prepare for trial—his argument is more appropriately the subject of a CPL article 440motion (see People v McKeney, 45AD3d 974, 975 [2007]; People v Donaldson, 1 AD3d at 801).
Peters, J.P., Rose, Lahtinen and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: Furthermore, inasmuch as thereis no indication in the record before us that defendant moved to withdraw his plea or vacate hisjudgment of conviction, his assertion is also unpreserved for review on the present appeal(see People v Buckler, 80 AD3d at 890; People v Jenks, 69 AD3d 1120, 1121 [2010], lv denied 14NY3d 841 [2010]). To the extent that defendant appears to have moved to vacate his judgment ofconviction subsequent to its rendering, the direct appeal from the judgment of convictionpresently before us is not the proper vehicle to raise issues regarding that motion and itsdisposition.
Footnote 2: Although the record doesindicate that counsel did not retain the investigator authorized by County Court, we note that thisreveals nothing about counsel's own investigations or lack thereof and, under the totality of thecircumstances, counsel's decision not to retain an investigator did not deprive defendant ofmeaningful representation.