| People v Collins |
| 2015 NY Slip Op 05368 [129 AD3d 1676] |
| June 19, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vWilliam M. Collins, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Caitlin M. Connelly of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.),rendered June 20, 2013. The judgment convicted defendant, upon his plea of guilty, ofdriving while intoxicated, a class D felony, and aggravated unlicensed operation of amotor vehicle in the first degree.
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 driving while intoxicated (DWI) as a class D felony (Vehicle and Traffic Law§§ 1192 [3]; 1193 [1] [c] [ii]) and aggravated unlicensed operation ofa motor vehicle in the first degree, a class E felony (§ 511 [3] [a] [i]; [b]).We agree with defendant that his waiver of the right to appeal was invalid inasmuch ashe pleaded guilty to both charges in the superior court information without a sentencingcommitment (see People vMeiner, 20 AD3d 778, 778 n [2005]; People v Coles, 13 AD3d 665, 666 [2004]), but wenevertheless reject his challenge to the severity of the sentence, particularly in view ofdefendant's numerous driving and alcohol-related offenses.
Although defendant's contention that he received ineffective assistance of counselduring the plea bargaining stage survives his plea of guilty to the extent that he contendsthat his plea was infected by the ineffective assistance (see People v Neil, 112 AD3d1335, 1336 [2013], lv denied 23 NY3d 1040 [2014]), defendant's contentionis without merit (see generally People v Ford, 86 NY2d 397, 404 [1995]).Although defense counsel did not negotiate a lower sentence for defendant and he wassentenced to the maximum indeterminate term for the DWI conviction, given defendant'slong history of drinking and driving offenses and the serious nature of the instantoffense, it was unlikely that the court or the People would have extended a plea offer."Counsel will not be deemed ineffective for the failure to pursue a course of negotiationthat was, at best, 'dubious' " (People v Dimick, 223 AD2d 808, 809[1996], lv denied 89 NY2d 1034 [1997]).
We reject defendant's contention that defense counsel's comments at the sentencinghearing rendered him ineffective. "Even assuming, arguendo, that the attorney took aposition adverse to defendant, we conclude that reversal is not warranted because thestatements did not 'contribute to any rulings against defendant' " (People v Winters, 82 AD3d1691, 1692 [2011], lv denied 17 NY3d 810 [2011]).
Defendant's contention that defense counsel was ineffective because defendant wasmisled into believing that he would benefit from the plea cannot be reviewed on directappeal inasmuch as it is based on matters outside the record (see People v Davis, 119 AD3d1383, 1384 [2014], lv denied 24 NY3d 960 [2014]). Present—Smith,J.P., Peradotto, Carni, Valentino and Whalen, JJ.