| People v Wynne |
| 2022 NY Slip Op 04182 [206 AD3d 1013] |
| June 29, 2022 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jeffrey Wynne, Appellant. |
Marianne Karas, Thornwood, NY, for appellant.
Anne T. Donnelly, District Attorney, Mineola, NY (Tammy J. Smiley and Kevin C. King ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Robert A.Schwartz, J.), rendered July 30, 2021, convicting him of criminal possession of a controlledsubstance in the fifth degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's waiver of his right to appeal does not foreclose appellate review of hiscontention that the Supreme Court failed to conduct a proper inquiry into his postplea arrest priorto imposing an enhanced sentence (seePeople v Knee, 174 AD3d 646, 646 [2019]; People v Cousar, 128 AD3d 716, 716 [2015]). However, contraryto the defendant's contention, the inquiry conducted by the court was sufficient to determine thatthere was a legitimate basis for the defendant's postplea arrest, and thus satisfied the requirementsof due process (see People v Perez,140 AD3d 799, 799 [2016]; Peoplev Driscoll, 131 AD3d 766, 767 [2015]; People v Walker, 5 AD3d 702, 703 [2004]).
Contrary to the defendant's contention, he was not deprived of the effective assistance ofcounsel due to a conflict of interest. "The right to effective counsel ensures . . . theassistance of counsel that is 'conflict-free and singlemindedly devoted to the client's bestinterests' " (People v Berroa, 99 NY2d 134, 139 [2002], quoting People vLongtin, 92 NY2d 640, 644 [1998], cert denied 526 US 1114 [1999]). Accordingly,where, as here, a defendant makes a conflict-based claim of ineffective assistance of counsel, thecourt must determine, first, "whether there was a potential conflict of interest," and second,whether the defendant has shown that the conduct of the defense "was in fact affected by theoperation of the conflict of interest, or that the conflict operated on the representation" (People v Konstantinides, 14 NY3d1, 10 [2009] [internal quotation marks omitted]; see People v Dollinger, 128 AD3d 1085, 1087 [2015]). Here, thedefendant failed to demonstrate either the existence of a conflict of interest or any prejudice as aresult of the alleged conflict of interest (see People v Smart, 96 NY2d 793, 795 [2001];People v Argentina, 27 AD3d569, 570 [2006]; cf. People v Ortiz, 76 NY2d 652, 657 [1990]).
Contrary to the People's contention, the defendant's waiver of the right to appeal does notextend to the imposition of the enhanced sentence because the Supreme Court did not inform thedefendant of the maximum sentence which could be imposed if he failed to comply with theconditions of the plea until after he agreed to waive his right to appeal (see People vMcNeil, 164 [*2]AD3d 608, 608 [2018]; People v Saaverda, 132 AD3d 701,702 [2015]; see also People vMaracle, 19 NY3d 925 [2012]). Thus, the waiver does not preclude appellate review ofhis excessive sentence claim.
However, the enhanced sentence imposed was not excessive (see People v Suitte, 90AD2d 80 [1982]). Dillon, J.P., Duffy, Maltese and Ford, JJ., concur.