People v Wester

2011 NY Slip Op 02266 [82 AD3d 1677]

March 25, 2011

Appellate Division, Fourth Department

As corrected through Wednesday, May 11, 2011

The People of the State of New York, Respondent, v Christopher L.Wester, Also Known as C-Murder, Appellant.

—[*1]Timothy P. Donaher, Public Defender, Rochester (Timothy S. Davis of counsel), fordefendant-appellant.

Michael C. Green, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.

Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.),rendered November 21, 2007. The judgment convicted defendant, upon his plea of guilty, ofkidnapping in the second degree and assault in the second degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty ofkidnapping in the second degree (Penal Law § 135.20) and assault in the second degree(§ 120.05 [2]). We reject defendant's contention that his attorney became a witness againsthim and that he was thereby denied effective assistance of counsel. Contrary to defendant'scontention, the statements of defense counsel in response to defendant's pro se motion towithdraw his guilty plea were not adverse to defendant (see People v Guerra-Pena, 46 AD3d 1469 [2007], lv denied10 NY3d 765 [2008]). In any event, even if defendant is correct that the statements were adverseto him, the record conclusively establishes that Supreme Court's "rejection of [the] motion wasnot influenced by" those statements (People v Nawabi, 265 AD2d 156 [1999], lvdenied 94 NY2d 865 [1999]). We also reject defendant's contention that he was deniedeffective assistance of counsel based on defense counsel's failure to make any arguments ondefendant's behalf at sentencing. There is no showing that any arguments by defense counselwould have impacted the court's sentencing decision and, thus, "the failure of [defense] counselto speak on defendant's behalf at sentencing d[id] not constitute ineffective assistance of counsel"(People v Adams, 247 AD2d 819, 819 [1998], lv denied 91 NY2d 1004 [1998]).Present—Centra, J.P., Fahey, Carni, Green and Gorski, JJ.