| People v Henry |
| 2010 NY Slip Op 04474 [73 AD3d 1391] |
| May 27, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Sharlene E.Henry, Also Known as Sharlene Whitfield, Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Devin J. Anderson of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered March 27, 2009, convicting defendant upon her plea of guilty of thecrime of criminal possession of a controlled substance in the third degree.
In the course of an investigation into a fight wherein an individual was stabbed, defendantmade a statement to police in which she admitted to possessing crack cocaine with intent to selland secreting it in her anal cavity after the fight occurred. Although the plastic bag storing thecrack cocaine was retrieved from defendant's person, the crack cocaine was not. Following anunsuccessful attempt to suppress her statement, defendant pleaded guilty to one count of criminalpossession of a controlled substance in the third degree in satisfaction of a pending indictmentand waived her right to appeal. County Court sentenced defendant, as a second felony offender,to the agreed-upon prison term of seven years and postrelease supervision of three years.Defendant now appeals and we affirm.
Defendant argues that defense counsel was ineffective at the Huntley hearing byfailing to sufficiently explore the possibility that she was impaired by crack cocaine use at thetime she made her statement. Assuming that this argument calls into question the voluntarinessof [*2]defendant's guilty plea, her failure to move to withdrawher plea or vacate the judgment of conviction leaves it unpreserved for our review (see People v Jenks, 69 AD3d1120, 1121 [2010]; People vCintron, 62 AD3d 1157, 1158 [2009], lv denied 13 NY3d 742[2009]).[FN*]Regardless, her argument fails on the merits. Defendant was examined at a hospital prior tomaking her statement, no other evidence in the record indicated that she was impaired, anddefense counsel appropriately cross-examined the detective who obtained that statementregarding defendant's mental state (see People v Hayden, 250 AD2d 937, 939 [1998],lv denied 92 NY2d 879 [1998]; People v Leary, 145 AD2d 732, 734 [1988],lv denied 73 NY2d 1017 [1989]). Moreover, defendant expressed her satisfaction withcounsel during the plea colloquy and indicated that she had discussed potential defenses in thecase with him (see People v Cintron, 62 AD3d at 1158).
Cardona, P.J., Mercure, Lahtinen and Malone Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: We note that defendant's appealwaiver expressly permits her to raise ineffective assistance issues upon appeal.