| People v Pollidore |
| 2014 NY Slip Op 09021 [123 AD3d 1058] |
| December 24, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jesika L. Pollidore, Appellant. |
Salvatore C. Adamo, New York, N.Y., for appellant.
David M. Hoovler, District Attorney, Middletown, N.Y. (Elizabeth L. Schulz ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County(Berry, J.), rendered August 30, 2012, convicting her of attempted burglary in the seconddegree, upon her plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the People's contention, the defendant did not validly waive her right toappeal (see People v Lopez,6 NY3d 248, 257 [2006]; People v Pressley, 116 AD3d 794 [2014]; People v Keiser, 100 AD3d927 [2012]).
Although the defendant's claims, that her plea of guilty was involuntary and thatcounsel's ineffectiveness affected the voluntariness of the plea, would survive even avalid waiver of the right to appeal (see People v Seaberg, 74 NY2d 1, 10 [1989];People v Duah, 91 AD3d884 [2012]; People vMcLean, 77 AD3d 684 [2010]), the defendant is, in any event, not entitled torelief on her substantive claims.
The defendant's contention that her plea of guilty was not knowing, voluntary, orintelligent because the County Court failed to advise her of the constitutional rights thatshe was waiving upon her plea is unpreserved for appellate review, since she did notmove to vacate her plea or otherwise raise this issue in the County Court (see Peoplev Clarke, 93 NY2d 904, 906 [1999]; People v Lopez, 71 NY2d 662, 665[1988]; People v Jackson,114 AD3d 807 [2014]; People v Hayes, 91 AD3d 792 [2012]). Contrary to thedefendant's contention, there is nothing in the record that casts significant doubt upon thedefendant's guilt or calls into question the voluntariness of the plea (see People vLopez, 71 NY2d at 666). In any event, the record of the plea proceeding reveals thatthe County Court expressly advised the defendant of the constitutional rights that she wasforfeiting by pleading guilty (see People v Tyrell, 22 NY3d 359 [2013]). Furthermore,the postplea statements attributed to the defendant in the presentence investigation reportdid not call into question the voluntariness of the plea and did not obligate the court toconduct a sua sponte inquiry into any alleged coercion (see People v Solis, 111 AD3d654 [2013]; People vAppling, 94 AD3d 1135, 1136 [2012]; People v Kelly, 50 AD3d 921 [2008]).
The defendant's contention that she was deprived of the effective assistance of [*2]counsel as a consequence of her attorney's failure to make amotion to withdraw her plea based on her postplea statements appearing in thepresentence investigation report is without merit. There can be no deprivation ofeffective assistance of counsel arising from counsel's failure to make a motion that hadlittle or no chance of success (see People v Ingram, 80 AD3d 713, 714 [2011]; People v Terrell, 78 AD3d865 [2010]; People vGoddard, 72 AD3d 839, 840 [2010]). The defendant has failed to show thatdefense counsel's performance fell below an objective standard of reasonableness andthat "there is a reasonable probability that, but for counsel's unprofessional errors, theresult of the proceeding would have been different" (Strickland v Washington,466 US 668, 694 [1984]). Furthermore, the record reveals that the defendant received anadvantageous plea, and nothing in the record casts doubt on the effectiveness of counsel(see People v Caban, 5NY3d 143, 152 [2005]; People v Henry, 95 NY2d 563, 566 [2000];People v Benevento, 91 NY2d 708, 712 [1998]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Mastro, J.P., Chambers, Cohen and Barros, JJ., concur.