| People v Williams |
| 2019 NY Slip Op 02924 [171 AD3d 1354] |
| April 18, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Kasheem Williams, Appellant. |
Rebecca L. Fox, Plattsburgh, for appellant, and appellant pro se.
J. Anthony Jordan, District Attorney, Fort Edward (Joseph A. Frandino of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Washington County (McKeighan,J.), rendered June 3, 2016, convicting defendant upon his plea of guilty of the crime of attemptedpromoting prison contraband in the first degree.
Defendant was indicted and charged with one count of promoting prison contraband in thefirst degree. Consistent with the terms of a negotiated plea agreement, defendant thereafterpleaded guilty to the reduced charge of attempted promoting prison contraband in the first degreeand was sentenced as a second felony offender to the agreed-upon prison term of1
We affirm. Defendant initially contends that he was denied the effective assistance ofcounsel—a claim largely premised upon defense counsel's failure to move to dismiss theindictment upon the ground that defendant was not provided with notice of the grand juryproceeding. By pleading guilty, however, defendant forfeited any claim that he was denied hisright to appear before the grand jury (seePeople v Nieves, 166 AD3d 1380, 1381 n [2018]; People v Carlton, 120 AD3d 1443, 1444 [2014], lv denied25 NY3d 1070 [2015]). Moreover, as this matter involved a "direct presentment" to the grandjury, defendant was not entitled to notice that a grand jury proceeding was pending (seeCPL 190.50 [5] [a]); hence, even assuming that this issue was properly before us, defense"counsel cannot be faulted for failing to make [a] motion[ ] that had little or no chance ofsuccess" (People v Kerley, 154AD3d 1074, 1076 [2017], lv denied 30 NY3d 1106 [2018]).
The arguments raised in defendant's pro se brief do not require extended discussion.Defendant's challenge to the voluntariness of his plea is unpreserved for our review in theabsence of an appropriate postallocution motion, and given that defendant did not make anystatements during the plea colloquy that cast doubt upon his guilt or otherwise called intoquestion the voluntariness of his plea, the narrow exception to the preservation requirement wasnot triggered (see People v Hatch,165 AD3d 1321, 1321-1322 [2018], lv denied 32 NY3d 1125 [2018]; People v White, 157 AD3d 1128,1129 [2018], lv denied 31 NY3d 1018 [2018]). Defendant's related ineffective assistanceof counsel claim—to the extent that it impacts upon the voluntariness of hisplea—is similarly unpreserved (see People v Muller, 159 AD3d 1232, 1232 [2018]; People v Sparbanie, 158 AD3d942, 944 [2018], lv denied 31 NY3d 1087 [2018]). The balance of defendant'sineffective assistance of counsel claim, wherein he asserts that counsel offered erroneous legaladvice, pressured him to accept a guilty plea and failed to, among other things, properlyinvestigate his case and/or effectively communicate with him, involves matters outside of therecord that are, in turn, more properly pursued in the context of a CPL article 440 motion (seePeople v Muller, 159 AD3d at 1233; People v Goldston, 126 AD3d 1175, 1178 [2015], lv denied25 NY3d 1201 [2015]). Defendant's remaining contentions, to the extent not specificallyaddressed, have been examined and found to be lacking in merit.
Garry, P.J., Clark, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.