| People v Liggins |
| 2011 NY Slip Op 02188 [82 AD3d 1625] |
| March 25, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v WilliamLiggins, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in theFourth Judicial Department, from an order of the Oneida County Court (Michael L. Dwyer, J.),dated August 6, 2009. The order denied the motion of defendant pursuant to CPL 440.10 tovacate the judgment convicting him of murder in the second degree.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: We previously reversed an order denying without a hearing defendant'smotion pursuant to CPL 440.10 to vacate the judgment convicting him upon his plea of guilty ofmurder in the second degree (Penal Law § 125.25 [2]), and we remitted the matter for ahearing on defendant's contention that he was denied effective assistance of counsel (People v Liggins, 56 AD3d 1265[2008]). Following that hearing on remittal, County Court denied defendant's motion. We affirm.
"In the context of a guilty plea, a defendant has been afforded meaningful representationwhen he or she receives an advantageous plea and nothing in the record casts doubt on theapparent effectiveness of counsel" (People v Ford, 86 NY2d 397, 404 [1995]). Here,defendant pleaded guilty to the murder count in satisfaction of the indictment, which alsocharged him with criminal possession of a weapon in the third degree (Penal Law § 265.02[former (4)]). He was convicted as a juvenile offender and received the minimum sentence ofincarceration of five years to life in accordance with the plea agreement (see §70.05 [2] [a]; [3] [a]). The record establishes that the 15-year-old defendant fired a weapon sixtimes at a speeding vehicle on a residential street at approximately 6 o'clock on a summerevening, after the driver failed to pay for drugs sold to him by defendant. Only one bullet struckthe vehicle, which was just over 260 feet from defendant, and it then struck the driver, killinghim.
Contrary to defendant's contention, the failure of defense counsel to make pretrial motionsdid not deprive him of meaningful representation. The record establishes that the plea offerwould be available only for approximately two weeks following defendant's arraignment on theindictment and that defense counsel engaged in a thorough investigation of the facts and theevidence against defendant. Upon researching the law in light of the facts and evidence againstdefendant, defense counsel assessed the likelihood of success of motions to dismiss or reduce the[*2]indictment and to suppress defendant's statement to the policeas well as the weapon that was recovered. Defense counsel also assessed the likelihood thatdefendant would be acquitted after a trial of the murder count, and would instead be convicted ofthe lesser included offense of manslaughter in the second degree (see § 125.15[1]). As the court properly determined following the hearing on defendant's CPL 440.10 motion,defense counsel's determination that an acquittal of the murder count was unlikely is supportedboth by the record and the standard for depraved indifference murder applicable at the time of theoffense (see People v Register, 60 NY2d 270, 276 [1983], cert denied 466 US953 [1984]; cf. People v Feingold, 7NY3d 288 [2006]). We therefore agree with the court that defendant received meaningfulrepresentation (see Ford, 86 NY2d at 404; People v Colon, 72 AD3d 558 [2010], lv denied 15 NY3d850 [2010]). Present—Scudder, P.J., Fahey, Carni, Green and Gorski, JJ.