| People v Williams |
| 2015 NY Slip Op 00048 [124 AD3d 1285] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJerome Williams, Appellant. |
Charles J. Greenberg, Amherst, for defendant-appellant.
Barry L. Porsch, District Attorney, Waterloo for respondent.
Appeal from a judgment of the Seneca County Court (Dennis F. Bender, J.),rendered December 20, 2010. The judgment convicted defendant, upon his plea of guilty,of aggravated harassment of an employee by an inmate.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea ofguilty, of aggravated harassment of an employee by an inmate (Penal Law§ 240.32). As the People correctly concede, defendant's purported waiver ofthe right to appeal is invalid (see People v Khan, 291 AD2d 898, 898-899[2002]). By failing to move to withdraw the plea or to vacate the judgment of conviction,defendant failed to preserve for our review his contention that, based on his allegedmental illness, his guilty plea was not voluntarily, knowingly and intelligently entered(see People v Carpenter, 13AD3d 1193, 1194 [2004], lv denied 4 NY3d 797 [2005]). This case does notfall within the rare exception to the preservation requirement because the plea colloquydid not "clearly cast[ ] significant doubt upon the defendant's guilt or otherwise call[ ]into question the voluntariness of the plea" (People v Lopez, 71 NY2d 662, 666[1988]; see Carpenter, 13 AD3d at 1194). Nor does the presentence report castsignificant doubt on the voluntariness of the plea. "A history of prior mental illness ortreatment does not itself call into question defendant's competence . . . [,][and] [t]here is no indication in the record that defendant was unable to understand theproceedings or that he was mentally incompetent at the time he entered his guilty plea"(People v Robinson, 39AD3d 1266, 1267 [2007], lv denied 9 NY3d 869 [2007] [internal quotationmarks omitted]). "Defendant was asked a number of questions during the pleaproceedings to which he responded coherently and rationally, and there is no indicationthat defendant was unable to understand the implications of his decision to accept theplea offer" (People vShackelford, 100 AD3d 1527, 1528 [2012], lv denied 21 NY3d 1009[2013]).
Insofar as defendant contends that he was denied effective assistance of counselbased on defense counsel's failure to investigate his history of mental illness andpotential defenses, that contention involves matters outside the record on appeal andtherefore must be raised by way of a motion pursuant to CPL article 440 (see People v Dizak, 93 AD3d1182, 1185 [2012], lv denied 19 NY3d 972 [2012], reconsiderationdenied 20 NY3d 932 [2012]). Finally, we reject defendant's further contention thathe was denied effective assistance of counsel because defense counsel failed to move towithdraw defendant's plea based on information regarding defendant's history of mentalillness contained in the presentence report. There is no basis upon which to conclude thatdefendant did not enter the plea knowingly, voluntarily and intelligently, and it is wellsettled that "[t]here can be no denial of effective assistance of [defense] counsel arisingfrom counsel's failure to 'make a motion or argument that has little or no chance ofsuccess' " (People vCaban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287 [2004], reargdenied 3 NY3d 702 [2004]; see People v Keith, 26 AD3d 879, 880 [2006], lvdenied 6 NY3d 835 [2006]). Present—Smith, J.P., Centra, Fahey, Lindley andWhalen, JJ.