| People v Jones |
| 2014 NY Slip Op 01349 [114 AD3d 1080] |
| February 27, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vDevon Jones, Appellant. |
—[*1] D. Holley Carnright, District Attorney, Kingston (Carly Wolfrom of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered October 21, 2011, convicting defendant upon his plea of guilty of thecrimes of burglary in the first degree and robbery in the first degree.
In May 2009, a violent home invasion took place in Ulster County, followed severaldays later by another violent home invasion in Orange County. In a statement to police,defendant admitted that he lost a semi-automatic pistol while participating in the OrangeCounty invasion. DNA evidence recovered from a pistol found at the scene linked him tothe Ulster County invasion. An Ulster County grand jury charged him by supersedingindictment with burglary in the first degree (three counts), robbery in the first degree(two counts), criminal use of a firearm in the first degree and assault in the second degree(two counts). He pleaded guilty to burglary in the first degree and robbery in the firstdegree in full satisfaction of the indictment and was sentenced to two concurrent 25-yearprison terms, each followed by five years of postrelease supervision, to be servedconcurrently with the prison term imposed upon him for his Orange County conviction.Defendant appeals.
Defendant's claim that his guilty plea was involuntary in that it was coerced byCounty Court's alleged threat to sentence him illegally is unpreserved, as he withdrew hismotion to withdraw his plea, and the record does not reveal that he moved to vacate thejudgment of conviction (seePeople v Carpenter, 93 AD3d 950, 952 [2012], lv denied 19 NY3d 863[2012]; [*2]People v Terenzi, 57 AD3d 1228, 1229 [2008],lv denied 12 NY3d 822 [2009]).[FN1] The narrow exception to the preservation rule is not implicated, as he made nostatements during the plea allocution that were inconsistent with his guilt or negated anyelements of the crimes to which he pleaded guilty (see People v Leone, 101 AD3d 1352, 1352-1353 [2012],lv denied 21 NY3d 913 [2013]). Had the claim been preserved, we would havefound it unsupported by the record.
Defendant next contends that he received the ineffective assistance of counsel in thathis attorney did not move to suppress his statement regarding the Orange Countyincident, allegedly forcing him to plead guilty, and then failed to obtain a favorable pleaagreement. To the extent that they implicate the plea bargaining process, these claims arenot waived by defendant's guilty plea (see People v Mercer, 81 AD3d 1159, 1160 [2011], lvdenied 19 NY3d 999 [2012]), but they are nevertheless unpreserved, for the reasonsdiscussed above (see People vFeliciano, 108 AD3d 880, 881 [2013]). In any event, we would have found nolack of meaningful representation. Defendant's counsel negotiated a favorable agreementfor a prison term running concurrently to the Orange County sentence rather thanconsecutively (see Penal Law §§ 70.25 [2], [4]; 70.30 [1] [e] [iv]),and failure to make a single pretrial motion, or a motion with little chance of success,does not establish ineffective assistance (see People v Caban, 5 NY3d 143, 152 [2005]; People v Gentry, 73 AD3d1383, 1384 [2010]).[FN2]
Defendant's sentence was not harsh or excessive. As previously noted, his sentencecould have been imposed consecutively; County Court stated that it would have preferreda longer sentence but was imposing the sentence requested by the victims, who did notwish to relive at trial the traumatic experience of the home invasion. In view ofdefendant's inconsistent expressions of responsibility and remorse, his criminal history,and the violence of his offense—during which two victims were pistol-whippedand seriously injured while a three-year-old child was nearby—we find no abuseof discretion or extraordinary circumstances warranting modification in the interest ofjustice (see People vCancer, 16 AD3d 835, 840 [2005], lv denied 5 NY3d 826 [2005]).
Lahtinen, J.P., McCarthy and Rose, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: Defendant, pro se,wrote a letter to County Court asking to withdraw his plea on the ground ofinvoluntariness. However, during extensive questioning thereafter, he told the court thathe no longer wanted to withdraw the plea and confirmed that his decision to plead guiltywas voluntary. When asked why he did not wish to withdraw the plea, he said, "BecauseI'm guilty."
Footnote 2: Defendant moved tosuppress his statement in the Orange County prosecution. After that motion was denied,his Ulster County defense counsel declined to make another such motion. The OrangeCounty judgment of conviction was later affirmed, and the Second Departmentspecifically found that the suppression motion was properly denied (People v Jones, 108 AD3d779, 779 [2013]).