| People v Shackelford |
| 2012 NY Slip Op 07816 [100 AD3d 1527] |
| November 16, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Juman L.Shackelford, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), renderedAugust 20, 2008. The judgment convicted defendant, upon his plea of guilty, of assault in thefirst degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a plea of guilty of assault inthe first degree (Penal Law § 120.10 [3]), defendant contends that his plea was notknowingly entered because the factual allocution failed to establish that he acted with depravedindifference. Defendant's contention is not preserved for our review inasmuch as he did not moveto withdraw his plea or to vacate the judgment of conviction (see People v Lopez, 71NY2d 662, 665 [1988]; People vGranger, 96 AD3d 1667, 1667 [2012]). In any event, the allocution was sufficient toestablish that defendant acted with depraved indifference when he fired numerous shots from his9 millimeter handgun into a house in which he had reason to believe people would be present (see generally People v Suarez, 6 NY3d202, 214 [2005]; People vPayne, 3 NY3d 266, 271-272 [2004], rearg denied 3 NY3d 767 [2004]).Contrary to the further contention of defendant, defense counsel's statements regarding hiscompetency at sentencing do not cast doubt on the voluntariness of the plea. Defendant wasasked a number of questions during the plea proceedings to which he responded coherently andrationally, and there is no indication that defendant was unable to understand the implications ofhis decision to accept the plea offer (seegenerally People v Wilcox, 45 AD3d 1320, 1320 [2007], lv denied 10 NY3d772 [2008]).
Defendant's contention that he was denied effective assistance of counsel does not survivethe plea "because defendant failed to demonstrate that 'the plea bargaining process was infectedby [the] allegedly ineffective assistance or that defendant entered the plea because of hisattorney['s] allegedly poor performance' " (People v Wright, 66 AD3d 1334, 1334 [2009], lv denied 13NY3d 912 [2009]; see People vPaduano, 84 AD3d 1730, 1731 [2011]). Finally, we reject defendant's contention thatthe pretrial identification procedure was unduly suggestive (see People v Sylvester, 32 AD3d 1226, 1226-1227 [2006], lvdenied 7 NY3d 929 [2006]; Peoplev Cunningham, 15 AD3d 945, 945-946 [2005], lv denied 4 NY3d 829 [2005]).Present—Smith, J.P., Fahey, Sconiers, Valentino and Whalen, JJ.