PEOPLE v. JOHNSON

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

The PEOPLE of the State of New York, Respondent, v. Brian P. JOHNSON, Appellant.

Decided: September 25, 2008

Before:  MERCURE, J.P., PETERS, SPAIN, MALONE, JR. and STEIN, JJ. Louis N. Altman, Hurley, for appellant. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Appeal from a judgment of the County Court of Ulster County (Bruhn, J.), rendered June 4, 2007, convicting defendant upon his plea of guilty of the crime of robbery in the first degree.

After defendant made incriminating statements concerning the robbery of two convenience stores, he was indicted on two counts of robbery in the first degree and one count of robbery in the second degree.   Pursuant to a plea agreement, defendant pleaded guilty to one count of robbery in the first degree and was sentenced to a term of eight years in prison.   Upon discovering that defendant was a second violent felony offender, it was determined that this sentence was illegal and defendant was allowed to withdraw his plea.   Thereafter, pursuant to a new plea agreement, defendant pleaded guilty to one count of robbery in the first degree and was sentenced to a term of 10 years in prison, to be followed by five years of postrelease supervision.   Defendant now appeals.

 Inasmuch as defendant failed to move to withdraw his plea or vacate the judgment of conviction, his challenge to the voluntariness and factual sufficiency of the plea has not been preserved for our review (see People v. Welch, 46 A.D.3d 1228, 1229, 849 N.Y.S.2d 680 [2007], lv. denied 10 N.Y.3d 845, 859 N.Y.S.2d 404, 889 N.E.2d 91 [2008];  People v. Pagan, 36 A.D.3d 1163, 1164, 828 N.Y.S.2d 665 [2007];  People v. Phillips, 28 A.D.3d 939, 813 N.Y.S.2d 258 [2006], lv. denied 7 N.Y.3d 761, 819 N.Y.S.2d 886, 853 N.E.2d 257 [2006] ).   Moreover, contrary to defendant's assertion, the narrow exception to the preservation requirement is not triggered here as defendant did not make any statements during the second plea allocution that cast doubt upon either his guilt or the voluntariness of his plea, or otherwise tended to negate a material element of the crime (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988];  People v. Hall, 41 A.D.3d 1090, 1091, 839 N.Y.S.2d 565 [2007], lv. denied 9 N.Y.3d 876, 842 N.Y.S.2d 788, 874 N.E.2d 755 [2007];  People v. Williams, 25 A.D.3d 927, 929, 807 N.Y.S.2d 470 [2006], lv. denied 6 N.Y.3d 840, 814 N.Y.S.2d 88, 847 N.E.2d 385 [2006] ).   In any event, contrary to his contention, defendant's affirmative responses to County Court's questions during his second plea allocution established the elements of the crime (see People v. Saddlemire, 50 A.D.3d 1317, 1318, 855 N.Y.S.2d 749 [2008];  People v. Alexander, 31 A.D.3d 885, 886, 817 N.Y.S.2d 786 [2006] ).

 Similarly, defendant's claim that he was denied the effective assistance of counsel is also unpreserved for review due to his failure to move to withdraw his plea or vacate the judgment of conviction (see People v. Parara, 46 A.D.3d 936, 937, 846 N.Y.S.2d 762 [2007];  People v. Robinson, 42 A.D.3d 581, 581-582, 837 N.Y.S.2d 879 [2007], lv. denied 9 N.Y.3d 1009, 850 N.Y.S.2d 397, 880 N.E.2d 883 [2007] ).   Were we to consider this claim, we would find it unpersuasive.   Although defendant bases his argument on counsel's failure to raise an affirmative defense to the robbery in the first degree charge that he alleges was apparent in his first plea allocution, that plea was withdrawn and, as we have determined, defendant's second plea allocution did not cast doubt upon his guilt. Furthermore, negotiating a plea bargain despite the existence of a potential affirmative defense does not necessarily result in a finding of ineffective assistance of counsel (see People v. Anderson, 38 A.D.3d 1061, 1063, 831 N.Y.S.2d 582 [2007], lv. denied 8 N.Y.3d 981, 838 N.Y.S.2d 484, 869 N.E.2d 660 [2007] ).   As counsel secured an advantageous plea, which included the minimum sentence permitted by law, and further advocated defendant's interests, we cannot say that defendant was deprived of meaningful representation (see People v. Lawrence, 34 A.D.3d 984, 985, 823 N.Y.S.2d 625 [2006] ).

ORDERED that the judgment is affirmed.

MALONE JR., J.

MERCURE, J.P., PETERS, SPAIN and STEIN, JJ., concur.

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