| People v Davis |
| 2014 NY Slip Op 05112 [119 AD3d 1383] |
| July 3, 2014 |
| Appellate Division, Fourth Department |
[*1]
| 1 The People of the State of New York, Respondent, vLateek Davis, Appellant. (Appeal No. 1.) |
Williams, Heinl, Moody & Buschman, P.C., Auburn (Ryan James Muldoon ofcounsel), for defendant-appellant.
Lateek Davis, defendant-appellant pro se.
Jon E. Budelmann, District Attorney, Auburn (Nathan J. Garland of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.),rendered February 28, 2013. The judgment convicted defendant, upon his plea of guilty,of criminal sale of a controlled substance 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 plea of guilty of criminal sale of a controlled substance in the third degree(Penal Law § 220.39 [1]) and, in appeal No. 2, he appeals from a judgmentthat also convicted him upon his plea of guilty of that crime. In both appeals, defendantcontends in a pro se supplemental brief that he was denied effective assistance of counselbased on his attorney's failure to file motions or investigate the crime. Defendant'scontention that he was denied effective assistance of counsel survives his guilty pleasonly to the extent that "he contends that his plea[s were] infected by the allegedlyineffective assistance and that he entered the plea[s] because of his attorney's allegedlypoor performance" (People vBethune, 21 AD3d 1316, 1316 [2005], lv denied 6 NY3d 752 [2005]; see People v Jacques, 79 AD3d1812, 1812 [2010], lv denied 16 NY3d 896 [2011]). With respect todefendant's contention that he was forced to plead guilty because defense counsel failedto file motions, the record reflects that defense counsel, with defendant's consent,repeatedly requested adjournments of the date for filing motions in order to pursue pleanegotiations. " '[I]t is incumbent on defendant to demonstrate the absence ofstrategic or other legitimate explanations' for [defense] counsel's alleged shortcomings"(People v Benevento, 91 NY2d 708, 712 [1998], quoting People vRivera, 71 NY2d 705, 709 [1988]). Here, particularly in light of the evidence in therecord establishing that defense counsel delayed in filing motions in order to arrange aplea agreement in accordance with defendant's wishes, we conclude that defendant failedto meet that burden (see Peoplev Elamin, 82 AD3d 1664, 1665 [2011], lv denied 17 NY3d 794 [2011];People v Jacobs, 52 AD3d1182, 1184 [2008], lv denied 11 NY3d 926 [2009]). Further, to the extentthat defendant contends that defense counsel was ineffective in failing to investigate thecrimes, we note that such contention is based on matters outside the record and thus isnot reviewable on direct appeal (see People v Cobb, 72 [*2]AD3d 1565, 1567 [2010], lv denied 15 NY3d 803[2010]; People vWashington, 39 AD3d 1228, 1230 [2007], lv denied 9 NY3d 870[2007]).
Contrary to defendant's contention in his main brief, his sentence is not unduly harshor severe. Present—Smith, J.P., Carni, Lindley, Valentino and Whalen, JJ.