PEOPLE v. DENNIS

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Supreme Court, Appellate Division, Third Department, New York.

The PEOPLE of the State of New York, Respondent, v. Marcus R. DENNIS, Appellant.

Decided: June 20, 2002

Before:  CARDONA, P.J., MERCURE, PETERS, SPAIN and CARPINELLO, JJ. Del Atwell, Albany, for appellant. John R. Trice, District Attorney, Elmira (Geoffrey S. Peterson of counsel), for respondent.

Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered May 8, 2000, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

In July 1999, defendant was indicted on one count of criminal possession of a controlled substance in the third degree.   In March 2000, defendant entered a negotiated plea of guilty, which was accepted in full satisfaction of that indictment, as well as a second indictment charging him with two counts of criminal sale of a controlled substance in the third degree.   In April 2000, defendant made a pro se motion to withdraw his guilty plea, alleging ineffective assistance of counsel and coercion by his attorney.   After the appointment of new counsel, defendant's motion was denied and he was subsequently sentenced as a second felony offender to an indeterminate prison term of 4 1/212 to 9 years.   Defendant appeals.

 Initially, we note that “[t]he question of whether to permit a defendant to withdraw a guilty plea rests within the sound discretion of the trial court * * * and absent a showing of abuse, that court's determination will not be disturbed” (People v. Bonilla, 285 A.D.2d 746, 747, 728 N.Y.S.2d 557).   Upon our review of the record, we find that County Court did not abuse its discretion in denying defendant's motion.   The transcript of the plea allocution demonstrates that the court engaged in a detailed colloquy with defendant and ascertained that he understood the ramifications of his plea and that he did, in fact, commit the crime at issue (see, People v. Dawson, 278 A.D.2d 665, 667-668, 718 N.Y.S.2d 99, lv. denied 96 N.Y.2d 799, 726 N.Y.S.2d 376, 750 N.E.2d 78;  People v. Gibson, 261 A.D.2d 710, 711, 691 N.Y.S.2d 195).

 Defendant's contention that the plea allocution was deficient because he failed to admit knowledge of the specific location of the drugs inside the apartment is unpersuasive.   Defendant acknowledged that he brought the drugs to the apartment and that he retained control over them even though he had given them to his cousin to hold.   In response to questioning by County Court, defendant unequivocally admitted to the knowing possession of the drugs with the intent to sell them.   Under the circumstances presented, we find that “defendant knowingly and voluntarily entered his plea following a sufficient inquiry by County Court, during which time defendant admitted his guilt to the requisite elements of the crime[ ] charged” (People v. Dove, 236 A.D.2d 644, 644, 654 N.Y.S.2d 40;  see, Penal Law § 220.16[1] ).

 Similarly, we find defendant's contentions regarding the ineffective assistance of counsel to be without merit, as the record establishes that defendant was afforded meaningful representation (see, People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Defendant's attorney made appropriate motions and successfully negotiated a very favorable plea, resulting in the dismissal of the companion indictment and the imposition of the minimum possible sentence on the possession charge (see, People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265;  People v. Gibson, 261 A.D.2d 710, 711, 691 N.Y.S.2d 195;  People v. Crippa, 245 A.D.2d 811, 812, 666 N.Y.S.2d 781, lv. denied 92 N.Y.2d 850, 677 N.Y.S.2d 80, 699 N.E.2d 440).   Furthermore, defense counsel's failure to notify the People that defendant wished to testify before the Grand Jury does not, by itself, amount to ineffective assistance of counsel (see, People v. Wiggins, 89 N.Y.2d 872, 873, 653 N.Y.S.2d 91, 675 N.E.2d 845;  People v. Mejias, 293 A.D.2d 819, 742 N.Y.S.2d 129, 131).   We find defendant's conclusory allegation that this failure “may have impacted [his] ability to present a viable defense” to be insufficient to support an ineffective assistance of counsel claim (see, People v. Galleria, 264 A.D.2d 899, 900, 696 N.Y.S.2d 96, lv. denied 94 N.Y.2d 880, 705 N.Y.S.2d 12, 726 N.E.2d 489).   Accordingly, we affirm.

ORDERED that the judgment is affirmed.

PETERS, J.

CARDONA, P.J., MERCURE, SPAIN and CARPINELLO, JJ., concur.

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