| People v Johnson |
| 2008 NY Slip Op 07048 [54 AD3d 1133] |
| September 25, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Brian P.Johnson, Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Ulster County (Bruhn, J.),rendered June 4, 2007, convicting defendant upon his plea of guilty of the crime of robbery in thefirst degree.
After defendant made incriminating statements concerning the robbery of two conveniencestores, he was indicted on two counts of robbery in the first degree and one count of robbery inthe second degree. Pursuant to a plea agreement, defendant pleaded guilty to one count ofrobbery in the first degree and was sentenced to a term of eight years in prison. Upon discoveringthat defendant was a second violent felony offender, it was determined that this sentence wasillegal and defendant was allowed to withdraw his plea. Thereafter, pursuant to a new pleaagreement, defendant pleaded guilty to one count of robbery in the first degree and was sentencedto a term of 10 years in prison, to be followed by five years of postrelease supervision. Defendantnow appeals.
Inasmuch as defendant failed to move to withdraw his plea or vacate the judgment ofconviction, his challenge to the voluntariness and factual sufficiency of the plea has not beenpreserved for our review (see People vWelch, 46 AD3d 1228, 1229 [2007], lv denied 10 NY3d 845 [2008]; People v Pagan, 36 AD3d 1163,1164 [2007]; People v Phillips, 28AD3d 939 [2006], lv denied 7 NY3d 761 [2006]). Moreover, contrary to defendant'sassertion, the narrow [*2]exception to the preservationrequirement is not triggered here as defendant did not make any statements during the secondplea allocution that cast doubt upon either his guilt or the voluntariness of his plea, or otherwisetended to negate a material element of the crime (see People v Lopez, 71 NY2d 662, 666[1988]; People v Hall, 41 AD3d1090, 1091 [2007], lv denied 9 NY3d 876 [2007]; People v Williams, 25 AD3d 927,929 [2006], lv denied 6 NY3d 840 [2006]). In any event, contrary to his contention,defendant's affirmative responses to County Court's questions during his second plea allocutionestablished the elements of the crime (see People v Saddlemire, 50 AD3d 1317, 1318 [2008]; People v Alexander, 31 AD3d885, 886 [2006]).
Similarly, defendant's claim that he was denied the effective assistance of counsel is alsounpreserved for review due to his failure to move to withdraw his plea or vacate the judgment ofconviction (see People v Parara, 46AD3d 936, 937 [2007]; People vRobinson, 42 AD3d 581, 581-582 [2007], lv denied 9 NY3d 1009 [2007]).Were we to consider this claim, we would find it unpersuasive. Although defendant bases hisargument on counsel's failure to raise an affirmative defense to the robbery in the first degreecharge that he alleges was apparent in his first plea allocution, that plea was withdrawn and, aswe have determined, defendant's second plea allocution did not cast doubt upon his guilt.Furthermore, negotiating a plea bargain despite the existence of a potential affirmative defensedoes not necessarily result in a finding of ineffective assistance of counsel (see People v Anderson, 38 AD3d1061, 1063 [2007], lv denied 8 NY3d 981 [2007]). As counsel secured anadvantageous plea, which included the minimum sentence permitted by law, and furtheradvocated defendant's interests, we cannot say that defendant was deprived of meaningfulrepresentation (see People vLawrence, 34 AD3d 984, 985 [2006]).
Mercure, J.P., Peters, Spain and Stein, JJ., concur. Ordered that the judgment is affirmed.