| People v Griffin |
| 2018 NY Slip Op 06592 [165 AD3d 1316] |
| October 4, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Kenneth C. Griffin, Appellant. |
Elena Jaffe Tastensen, Saratoga Springs, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Joseph A. Frandino of counsel), forrespondent.
Rumsey, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered January 28, 2016, convicting defendant upon his plea of guilty of thecrime of attempted promoting prison contraband in the first degree.
Defendant, an inmate, was charged in an indictment with promoting prison contraband in thefirst degree after he was found to have possessed an ice pick type weapon, which he used to stabanother inmate. Pursuant to a plea agreement, defendant pleaded guilty to the reduced charge ofattempted promoting prison contraband in the first degree. Consistent with the terms of the pleaagreement, County Court sentenced defendant, as a second felony offender, to a prison term of1
We affirm. As an initial matter, defendant's challenge to the voluntariness of his guilty pleaand claim of ineffective assistance of counsel are matters ordinarily required to be preservedthrough an appropriate postallocution motion (see People v Decker, 159 AD3d 1190, 1192 [2018], lvdenied 31 NY3d 1116 [2018]; People v Evans, 156 AD3d 1246, 1247 [2017]; People v Darrell, 145 AD3d 1316,1317 [2016], lv denied 29 NY3d 1125 [2017]). However, as defendant pleaded guilty andwas sentenced in the same proceeding, he did not have the practical ability to make apostallocution motion and, therefore, his claims are reviewable (see People v Sougou, 26 NY3d1052, 1054 [2015]; People vConceicao, 26 NY3d 375, 382 [2015]; People v Rosa, 135 AD3d 434, 434 [2016], lv denied 27NY3d 968 [2016]). Nevertheless, we find that his claims are without merit.
The plea allocution reflects that defendant was advised by County Court that, by pleadingguilty, he would forfeit certain trial-related rights, including "the privilege againstself-incrimination and the rights to a jury trial and to be confronted by witnesses" (People v Tyrell, 22 NY3d 359, 365[2013], citing Boykin v Alabama, 395 US 238, 243 [1969]; see People v Proper,[*2]133 AD3d 918, 919 [2015]), that the People had theobligation to prove his guilt beyond a reasonable doubt and that the jury's verdict had to beunanimous (see People v Nunez, 56AD3d 897, 898 [2008], lv denied 11 NY3d 928 [2009]; People v Ivory, 53 AD3d 788, 789[2008]). Defendant further indicated his understanding of the plea agreement and the pleaproceedings and stated his desire to plead guilty instead of proceeding to trial where he couldhave raised defenses to the charges. In view of the foregoing, we find that defendant wasadequately advised of the consequences of his plea and that he made a "knowing, voluntary andintelligent choice among alternative courses of action" (People v Conceicao, 26 NY3d at382; see People v Soto, 259 AD2d 904, 904 [1999]).
Defendant's claim that his plea was not voluntary because he was denied the effectiveassistance of counsel is also belied by the record. Defendant indicated that he had sufficient timeto speak to his attorney—with whom he had discussed the strengths and weaknesses of hiscase, trial strategies and suppression issues—and that he was satisfied with his attorney'srepresentation (see People vBeekman, 134 AD3d 1355, 1357 [2015], lv denied 27 NY3d 992 [2016]; People v Abdullah, 122 AD3d958, 960 [2014], lv denied 24 NY3d 1218 [2015]). Moreover, inasmuch as therecord reveals that defense counsel negotiated an advantageous plea on defendant's behalf, andnothing in the record casts doubt on counsel's apparent effectiveness, we find that defendant wasafforded meaningful representation in connection with his guilty plea (see People v Fatiu, 158 AD3d 890,891 [2018]; People v Brown, 154AD3d 1004, 1006 [2017], lv denied 30 NY3d 1113 [2018]; People v Khan, 139 AD3d 1261,1264 [2016], lv denied 28 NY3d 932 [2016]; People v Burns, 133 AD3d 1045, 1047 [2015], lv denied 27NY3d 1149 [2016]). Finally, as the balance of defendant's ineffective assistance of counsel claiminvolves matters outside of the record, it is more properly the subject of a CPL article 440 motion(see People v Dutcher, 156 AD3d1122, 1123 [2017]; People vLewis, 143 AD3d 1183, 1185 [2016]). Defendant's remaining contention has beenconsidered and found to lack merit.
Garry, P.J., McCarthy, Lynch and Aarons, JJ., concur. Ordered that the judgment isaffirmed.