| People v Hamm |
| 2008 NY Slip Op 10182 [57 AD3d 919] |
| December 23, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v Bruce D.Hamm, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Luke E. Bovill of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Orange County (De Rosa, J.),rendered August 8, 2007, convicting him of grand larceny in the third degree, upon his plea of guilty,and imposing sentence.
Ordered that the judgment is affirmed.
The defendant argues "that he received ineffective assistance of counsel in that counsel permittedhim to plead guilty and [to] waive his right to appeal without filing a motion to dismiss the indictment, inthe interest of justice, pursuant to People v Clayton (41 AD2d 204 [1973])." He argues,"defense counsel had no strategic or legitimate explanation for [the] failure [to file a Claytonmotion]."
Contrary to this contention, the record on appeal contains no indication that a Claytonmotion (see CPL 210.40) would have had the slightest chance of success, and thus thedefendant's former attorney cannot be said to have been ineffective based only on his failure to makesuch a motion. "There can be no denial of effective assistance of . . . counsel arising fromcounsel's failure to 'make a motion or argument that had little or no chance of success' " (People vCaban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287 [2004]).
In light of the defendant's waiver of his right to appeal, which was, by all appearances, completelyvoluntary, the defendant's argument concerning the alleged excessiveness of his sentence is not properlybefore this Court (see People v Finn, 56 AD3d 490 [2008]; People v Jackson, 56AD3d 492 [2008]; People v Gallo, 54 AD3d 964 [2008]). Fisher, J.P., Florio, Carni andChambers, JJ., concur.