| People v Jackson |
| 2015 NY Slip Op 04527 [128 AD3d 1279] |
| May 28, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Desmond L. Jackson, Appellant. |
John P.M. Wappett, Public Defender, Lake George (Nellie R. Halloran of counsel),for appellant, and appellant pro se.
Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.
McCarthy, J.P. Appeal from a judgment of the County Court of Warren County (HallJr., J.), rendered February 27, 2013, convicting defendant upon his plea of guilty of thecrime of criminal possession of a controlled substance in the third degree.
Defendant waived indictment, pleaded guilty to a superior court information(hereinafter SCI) charging him with criminal possession of a controlled substance in thethird degree and waived his right to appeal. Prior to sentencing, defendant moved pro seto withdraw his guilty plea, contending that he received ineffective assistance of counsel.County Court denied defendant's motion and, in accordance with the plea agreement,sentenced defendant, as a second felony offender, to a prison term of seven yearsfollowed by three years of postrelease supervision. Defendant now appeals.
We affirm. Defendant's claim that the SCI charging him with criminal possession ofa controlled substance in the third degree was jurisdictionally defective survives hisguilty plea and appeal waiver (see People v Brothers, 123 AD3d 1240, 1240 [2014]; People v Martinez, 106 AD3d1379, 1379 [2013], lv denied 22 NY3d 957 [2013]). Here, the SCIerroneously denominated the crime charged as Penal Law § 220.16 (1),rather than Penal Law § 220.16 (12). Upon our review, however, we findthat the record establishes that this was solely a typographical error as the facts alleged inthe SCI made clear that the crime intended to be charged was Penal Law§ 220.16 (12) (seePeople v Ashley, 89 AD3d 1283, 1285 [2011], lv [*2]denied 18 NY3d 955 [2012]; People v Sterling, 27 AD3d950, 951-952 [2006], lv denied 6 NY3d 898 [2006]; People v Miller, 23 AD3d699, 701 [2005], lv denied 6 NY3d 815 [2006]).
Defendant's ineffective assistance of counsel claim, to the extent that it implicates thevoluntariness of his guilty plea, survives his appeal waiver and has been properlypreserved by his motion to withdraw his plea (see People v Ramey, 123 AD3d 1290, 1290 [2014], lvdenied 25 NY3d 953 [2015]; People v Cavallaro, 123 AD3d 1221, 1223 [2014]).Nevertheless, defendant's specific claims of ineffective assistance of counsel are withoutsupport in the record. In this context, "a defendant has been afforded meaningfulrepresentation when he or she receives an advantageous plea and nothing in the recordcasts doubt on the apparent effectiveness of counsel" (People v Ford, 86 NY2d397, 404 [1995]; see People vWares, 124 AD3d 1079, 1080 [2015], lv denied 25 NY3d 993 [Apr. 21, 2015]; People v Ramey, 123 AD3d at 1290-1291). Here,the record discloses that defense counsel, among other things, secured a favorable pleadeal for defendant and vociferously advocated against sentencing defendant as a secondfelony offender. Further, nothing in the record—from the commencement of hiscriminal case to the completion of his advantageous plea—casts doubt uponcounsel's effectiveness. Defendant's claim that his counsel should have made variousmotions amounts to no more than second-guessing his counsel's legitimate legal strategygiven that such motions would likely have been denied as without merit (see People vBenevento, 91 NY2d 708, 712-713 [1998]; People v Wares, 124 AD3d at1081; People v Jones, 101AD3d 1241, 1242-1243 [2012], lv denied 21 NY3d 944 [2013]).Accordingly, we find that defendant received meaningful representation.
Defendant's valid appeal waiver—which he does not take issue with onappeal—precludes his challenge to the factual sufficiency of his plea allocution(see People v Sibounhome,125 AD3d 1059, 1060 [2015]; People v Devault, 124 AD3d 1140, 1141 [2015], lvdenied 25 NY3d 989 [Apr. 22, 2015]), his claim of prosecutorial misconduct (see People v Debberman, 113AD3d 929, 929 [2014]) and his assertion that his agreed-upon sentence was harshand excessive (see People vHall, 125 AD3d 1095, 1097 [2015]; People v Campo, 125 AD3d 1058, 1059 [2015]).
Egan Jr., Devine and Clark, JJ., concur. Ordered that the judgment is affirmed.