PEOPLE v. LEWIS (2004)

 In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, assault in the first degree (Penal Law § 120.10[1] ) and robbery in the first degree (§ 160.15[2] ).   In appeal No. 2, defendant appeals from a judgment convicting him upon a jury verdict of two counts of murder in the second degree (§ 125.25[3] ), and one count each of robbery in the first degree (§ 160.15[2] ) and attempted robbery in the first degree (§§ 110.00, 160.15[2] ).   With respect to appeal No. 1, defendant failed to move to withdraw his plea or to vacate the judgment of conviction and thus failed to preserve for our review his contentions that the plea was not knowingly, voluntarily or intelligently entered because he did not understand the consequences of pleading guilty without a sentencing promise and was not aware that his sentence would be followed by a period of postrelease supervision (see People v. White, 296 A.D.2d 867, 744 N.Y.S.2d 924, lv. denied 99 N.Y.2d 540, 752 N.Y.S.2d 601, 782 N.E.2d 579;  People v. Shumway, 295 A.D.2d 916, 917, 743 N.Y.S.2d 763;  see generally People v. Spivey, 9 A.D.3d 886, 779 N.Y.S.2d 373;  People v. Clark, 9 A.D.3d 895, 779 N.Y.S.2d 390).   To the extent, if any, that defendant's contention in appeal No. 1 concerning the alleged ineffective assistance of counsel is properly before us (see People v. Sherman, 8 A.D.3d 1026, 778 N.Y.S.2d 376), we conclude that defendant received meaningful representation during the plea process (see People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265;  Sherman, 8 A.D.3d 1026, 778 N.Y.S.2d 376).

 Contrary to defendant's contention in appeal No. 2, County Court properly allowed two officers to testify that they had informed defendant during interrogation that his codefendant had implicated him in the crimes and that there were witnesses who had identified him at the crime scene.   Although the codefendant's statement to the officers was testimonial (see generally Crawford v. Washington, 541 U.S. 36, ----, 124 S.Ct. 1354, 1365, 158 L.Ed.2d 177;  People v. Newland, 6 A.D.3d 330, 775 N.Y.S.2d 308), it was not offered for the truth of the facts asserted therein, but was instead offered to set forth the circumstances in which defendant admitted his culpability after initially denying all involvement in the crimes (see People v. Reynoso, 2 N.Y.3d 820, 781 N.Y.S.2d 284, 814 N.E.2d 456;  People v. Perez, 9 A.D.3d 376, 779 N.Y.S.2d 584;  People v. Glover, 195 A.D.2d 999, 600 N.Y.S.2d 562, lv. denied 82 N.Y.2d 849, 606 N.Y.S.2d 601, 627 N.E.2d 523).   Thus, the use of the statement did not violate the Confrontation Clause (see Reynoso, 2 N.Y.3d at 821, 781 N.Y.S.2d 284, 814 N.E.2d 456, quoting Crawford, 541 U.S. at ---- n. 9, 124 S.Ct. at 1369 n. 9;  Perez, 9 A.D.3d at 377, 779 N.Y.S.2d 584).   Moreover, the court gave appropriate limiting instructions to the jury each of the three times that the issue of the codefendant's statement arose, and it is presumed that the jury followed those instructions (see People v. Rojas, 278 A.D.2d 821, 717 N.Y.S.2d 448, affd. 97 N.Y.2d 32, 735 N.Y.S.2d 470, 760 N.E.2d 1265;  People v. Walker, 293 A.D.2d 411, 740 N.Y.S.2d 852, lv. denied 98 N.Y.2d 682, 746 N.Y.S.2d 472, 774 N.E.2d 237).   Because defendant did not request any further instructions after the limiting instructions were given, his present contention that the limiting instructions were inadequate is not preserved for our review (see People v. Huck, 1 A.D.3d 935, 936, 767 N.Y.S.2d 555;  see also People v. Staton, 124 A.D.2d 687, 507 N.Y.S.2d 919, lv. denied 69 N.Y.2d 750, 512 N.Y.S.2d 1055, 505 N.E.2d 253).   Finally, we conclude that defendant received meaningful representation at trial (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: