| People v Granger |
| 2012 NY Slip Op 05274 [96 AD3d 1667] |
| June 29, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Shawn G.Granger, Appellant. (Appeal No. 1.) |
—[*1] Cindy F. Intschert, District Attorney, Watertown (Kristyna S. Mills of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedMay 26, 2010. The judgment convicted defendant, upon his plea of guilty, of criminal possessionof a controlled substance in the third degree (two counts), criminal use of drug paraphernalia inthe second degree (two counts), driving while ability impaired by drugs, suspended registration,operating a motor vehicle without insurance, speeding (two counts), criminal possession ofmarihuana in the second degree, reckless driving, leaving the scene of a property damageaccident, failure to keep right, criminal possession of a controlled substance in the seventh degree(two counts), and unlawful possession of marihuana (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon hisguilty plea of two counts of criminal possession of a controlled substance in the third degree(Penal Law § 220.16 [1], [12]) and various other drug-related offenses. In appeal No. 2, heappeals from a judgment convicting him upon his guilty plea of, inter alia, criminal possession ofa controlled substance in the third degree (§ 220.16 [1]), assault in the second degree(§ 120.05 [3]), and harassment in the second degree (§ 240.26 [1]).
Addressing first appeal No. 2, we note that defendant challenges the sufficiency of the pleaallocution with respect to assault in the second degree on the ground that he denied having struckthe arresting police officer with his fist, which thereby negated an element of the crime. Becausedefendant did not move to withdraw his plea or to vacate the judgment of conviction, defendant'scontention is unpreserved for our review (see People v Lopez, 71 NY2d 662, 665 [1988];People v Jackson, 90 AD3d1692, 1693 [2011], lv denied 18 NY3d 958 [2012]). In any event, althoughdefendant stated during the plea colloquy that he "never struck" the arresting officer, we concludethat County Court made the proper further inquiry in accordance with Lopez (71 NY2d at666) and elicited from defendant an admission that, after intentionally resisting arrest, his bodycame into contact with the officer's body. Defendant further admitted that, as a result of hisstruggle with the officer, the officer sustained an injury to his knee that caused him substantialpain or impaired his physical condition. The mere fact that defendant denied having struck theofficer is immaterial because intent to cause injury is not an element of assault in the second[*2]degree under section 120.05 (3). In addition, we note that thePeople did not allege that the physical injury sustained by the officer resulted from the punchallegedly thrown by defendant. Although defendant's denial that he punched the officer may havenegated an element of harassment in the second degree, defendant does not challenge thesufficiency of his plea to that noncriminal offense.
Defendant contends in both appeals that he was deprived of his right to effective assistanceof counsel based upon his attorney's failure to pursue his motions to suppress evidence obtainedfrom his person and his vehicle. To the extent that defendant's contention survives his guiltypleas, i.e., to the extent defendant contends that "his plea[s were] infected by the allegedineffective assistance" (People vCulver, 94 AD3d 1427, 1427 [2012] [internal quotation marks omitted]), we concludethat defendant received meaningful representation. Defense counsel negotiated advantageousplea agreements, and defendant made a strategic decision to accept the plea offers before thecourt ruled on his suppression motions (see generally People v Ford, 86 NY2d 397, 404[1995]). Finally, we reject defendant's challenge to the severity of the sentence, particularly inview of the fact that he was eligible to be sentenced as a persistent felony offender and facedconsecutive sentences on five separate felony charges. Present—Scudder, P.J., Smith,Centra, Lindley and Martoche, JJ.