| People v Morris |
| 2014 NY Slip Op 03413 [117 AD3d 1580] |
| May 9, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJonathan Morris, Appellant. (Appeal No. 1.) |
Tyson Blue, Macedon, for defendant-appellant.
Richard M. Healy, District Attorney, Lyons (Bruce A. Rosekrans of counsel), forrespondent.
Appeal from a judgment of the Wayne County Court (Dennis M. Kehoe, J.),rendered November 20, 2012. The judgment convicted defendant, upon his plea ofguilty, of rape in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himupon his guilty plea of rape in the third degree (Penal Law § 130.25 [2])and, in appeal No. 2, defendant appeals from a judgment convicting him upon his guiltyplea of, inter alia, attempted burglary in the second degree (§§ 110.00,140.25 [2]) as a lesser included offense of burglary in the second degree, charged incount one of the indictment.
Defendant contends in appeal No. 1 that he was deprived of the right to effectiveassistance of counsel based upon defense counsel's abandonment of a suppression motionthat defense counsel had previously filed. To the extent that defendant's contentionsurvives his guilty plea, i.e., to the extent that defendant contends that "his plea wasinfected by the alleged ineffective assistance" (People v Culver, 94 AD3d 1427, 1427 [2012], lvdenied 19 NY3d 1025 [2012] [internal quotation marks omitted]), we conclude thatit is without merit. Defendant has failed to demonstrate the absence of strategic or otherlegitimate explanations for defense counsel's decision not to pursue the suppressionmotion (see People v Webb,92 AD3d 1268, 1269 [2012]). We conclude that defense counsel providedmeaningful representation (see generally People v Ford, 86 NY2d 397, 404[1995]).
In appeal No. 2, defendant contends that County Court erred in denying his motion todismiss count one of the indictment, charging burglary in the second degree, because thePeople failed to allege an essential element of the crime, namely, that he had entered thedwelling "unlawfully" (Penal Law § 140.25 [2]). We reject that contention.That count of the indictment specifically referred to Penal Law § 140.25 (2)and, thus, the People's failure to allege that defendant entered the dwelling "unlawfully"does not constitute a jurisdictional defect requiring dismissal of that count (see Peoplev Wright, 67 NY2d 749, 750 [1986]; People v Shanley, 15 AD3d 921, 922 [2005], lv denied4 NY3d 856 [2005]).
Finally, the sentence in each appeal is not unduly harsh or severe.Present—Scudder, P.J., Fahey, Lindley, Valentino and Whalen, JJ. [Prior CaseHistory: 2012 NY Slip Op 32805(U).]