| People v Loper |
| 2014 NY Slip Op 04598 [118 AD3d 1394] |
| June 20, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJason L. Loper, Appellant. (Appeal No. 1.) |
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of counsel), fordefendant-appellant.
Brooks T. Baker, District Attorney, Bath (John C. Tunney of counsel), forrespondent.
Appeal from a judgment of the Steuben County Court (Peter C. Bradstreet, J.),rendered July 16, 2012. The judgment convicted defendant, upon his plea of guilty, ofburglary in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice and on the law by vacating the sentenceimposed and as modified the judgment is affirmed, and the matter is remitted to SteubenCounty Court for the filing of a predicate felony offender statement andresentencing.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himupon his plea of guilty of burglary in the third degree (Penal Law § 140.20)and, in appeal No. 2, he appeals from a judgment convicting him upon a nonjury verdictof attempted burglary in the third degree (§§ 110.00, 140.20).Defendant's contention in appeal No. 1 that his plea was not knowingly, voluntarily, orintelligently entered because his factual recitation did not specify when or where hecommitted the alleged crime is actually a challenge to the factual sufficiency of the pleaallocution, and that contention is not preserved for our review because he did not moveto withdraw his plea or to vacate the judgment of conviction on that ground. In anyevent, we note that defendant's " 'monosyllabic responses to [County Court's]questions did not render the plea invalid' " (People v Gordon, 98 AD3d 1230, 1230 [2012], lvdenied 20 NY3d 932 [2012]).
With respect to defendant's contention in appeal No. 1 that the court erred in failingto permit him to withdraw his guilty plea, defendant abandoned that contention inasmuchas he withdrew his pro se motion to withdraw his plea (see People v Mower, 97NY2d 239, 246 [2002]; Peoplev Robbins, 83 AD3d 1531, 1531 [2011], lv denied 17 NY3d 821[2011]). Defendant's further contention in appeal No. 1 that he was denied effectiveassistance of counsel " 'does not survive his guilty plea . . . becausethere was no showing that the plea bargaining process was infected by [the] allegedlyineffective assistance or that defendant entered the plea because of his attorney['s]allegedly poor performance' " (People v Russell, 55 AD3d 1314, 1314 [2008], lvdenied 11 NY3d 930 [2009]; see People v Lugg, 108 AD3d 1074, 1075 [2013]). In anyevent, defendant received "an advantageous plea and nothing in the record casts doubt onthe apparent effectiveness of counsel" (People v Ford, 86 NY2d 397, 404 [1995];see People v Davis, 99AD3d 1228, 1229 [2012], lv denied 20 NY3d 1010 [2013]). We rejectdefendant's contention in appeal No. 2 that he was denied effective assistance of counsel.We conclude that defendant did not " 'demonstrate the absence of strategic orother legitimate explanations' " for defense counsel's failure to introduce facts inopposition to the People's recitation of the facts at the nonjury trial on stipulated facts(People v Benevento, 91 NY2d 708, 712 [1998]; see People v Howard, 101AD3d 1749, 1750-1751 [2012], lv denied 21 NY3d 944 [2013]).
Defendant failed to preserve for our review his contention in each appeal that thePeople failed to comply with the procedural requirements of CPL 400.21 when he wassentenced as a second felony offender (see People v Pellegrino, 60 NY2d 636,637 [1983]; People vButler, 96 AD3d 1367, 1368 [2012], lv denied 20 NY3d 931 [2012]).We nevertheless exercise our power to reach that contention as a matter of discretion inthe interest of justice (see CPL 470.15 [3] [c]). The People concede that they didnot file a statement as required by CPL 400.21 (2), and the record does not reflect thatdefendant admitted the prior felony in open court (see People v Butler, 105 AD3d 1408, 1409 [2013], lvdenied 21 NY3d 1072 [2013]; cf. Butler, 96 AD3d at 1368). We thereforemodify the judgment in each appeal by vacating the sentence, and we remit the matter toCounty Court for the filing of a predicate felony offender statement pursuant to CPL400.21 prior to resentencing (see Butler, 105 AD3d at 1409-1410).Present—Scudder, P.J., Centra, Carni, Sconiers and Whalen, JJ.