PEOPLE v. SANTOS RIVERA

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

The PEOPLE of the State of New York, Respondent, v. Josue SANTOS–RIVERA, Appellant.

Decided: July 21, 2011

Before:  PETERS, J.P., ROSE, LAHTINEN, MALONE JR. and McCARTHY, JJ. Jan Perlin, Oak Hill, for appellant. James E. Conboy, District Attorney, Fonda (Kelli P. McCoski of counsel), for respondent.

Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered December 1, 2008, convicting defendant upon his plea of guilty of the crime of murder in the second degree.

In satisfaction of a two-count indictment charging him with murder in the second degree and criminal possession of a weapon in the second degree, defendant pleaded guilty to the top count and waived his right to appeal.   He was sentenced pursuant to the plea agreement to a prison term of 22 years to life.   Contending that he received the ineffective assistance of counsel, defendant now appeals and we affirm.

 As an initial matter, defendant's valid waiver of his right to appeal precludes his claim of ineffective assistance to the extent that it did not impact the voluntariness of his plea (see People v. Buckler, 80 A.D.3d 889, 890, 914 N.Y.S.2d 773 [2011];  People v. Leigh, 71 A.D.3d 1288, 1288, 897 N.Y.S.2d 744 [2010], lv. denied 15 N.Y.3d 775, 907 N.Y.S.2d 464, 933 N.E.2d 1057 [2010];  People v. McDuffie, 43 A.D.3d 559, 560, 840 N.Y.S.2d 253 [2007], lv. denied 9 N.Y.3d 992, 848 N.Y.S.2d 609, 878 N.E.2d 1025 [2007] ).1  Thus, defendant's contentions regarding counsel's performance at the suppression hearing and other preplea court appearances—which do not implicate counsel's representation in such a way as directly affected the voluntariness of defendant's subsequent plea—are not properly considered when assessing his claim of ineffective assistance of counsel (see People v. Buckler, 80 A.D.3d at 890, 914 N.Y.S.2d 773;  People v. Gentry, 73 A.D.3d 1383, 1384, 901 N.Y.S.2d 429 [2010];  People v. McDuffie, 43 A.D.3d at 560, 840 N.Y.S.2d 253;  see generally People v. Parilla, 8 N.Y.3d 654, 659–660, 838 N.Y.S.2d 824, 870 N.E.2d 142 [2007] ).   A review of the plea allocution reveals that defendant's plea was knowingly, voluntarily and intelligently made, and we note that defendant stated at the allocution that he had not been pressured or coerced into pleading guilty and he was satisfied with the services of his counsel.   Consequently, we are unpersuaded by defendant's claim that he was deprived of the effective assistance of counsel.

 In any event, were we to assess counsel's representation on the record as a whole, we would find defendant's contention to be without merit.   “[F]or counsel to be effective, he or she must provide meaningful representation as shown by an examination of the totality of the evidence, facts and law” (People v. Stevenson, 58 A.D.3d 948, 949, 870 N.Y.S.2d 637 [2009], lv. denied 12 N.Y.3d 860, 881 N.Y.S.2d 671, 909 N.E.2d 594 [2009] [internal citations omitted];  see People v. Jackson, 67 A.D.3d 1067, 1068, 888 N.Y.S.2d 657 [2009], lv. denied 14 N.Y.3d 801, 899 N.Y.S.2d 136, 925 N.E.2d 940 [2010];  People v. Chrysler, 6 A.D.3d 812, 812–813, 774 N.Y.S.2d 208 [2004] ).   The record discloses that counsel made appropriate pretrial motions, adequately represented defendant at the suppression hearing (see People v. Jackson, 67 A.D.3d at 1068, 888 N.Y.S.2d 657;  People v. Stevenson, 58 A.D.3d at 949–950, 870 N.Y.S.2d 637;  People v. Donaldson, 1 A.D.3d 800, 801, 767 N.Y.S.2d 293 [2003], lv. denied 2 N.Y.3d 739, 778 N.Y.S.2d 465, 810 N.E.2d 918 [2004] ) and, in light of the fact that defendant's statements to the police, including a confession, were not suppressed, “counsel's plea strategy might well have been pursued by any reasonably competent attorney” (People v. Babcock, 304 A.D.2d 912, 913, 758 N.Y.S.2d 412 [2003] ).   Finally, to the extent that defendant's claim pertains to information outside the record—including defendant's assertions regarding counsel's failure to adequately investigate the circumstances surrounding his case 2 and prepare for trial—his argument is more appropriately the subject of a CPL article 440 motion (see People v. McKeney, 45 A.D.3d 974, 975, 844 N.Y.S.2d 516 [2007];  People v. Donaldson, 1 A.D.3d at 801, 767 N.Y.S.2d 293).

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   Furthermore, inasmuch as there is no indication in the record before us that defendant moved to withdraw his plea or vacate his judgment of conviction, his assertion is also unpreserved for review on the present appeal (see People v. Buckler, 80 A.D.3d at 890, 914 N.Y.S.2d 773;  People v. Jenks, 69 A.D.3d 1120, 1121, 891 N.Y.S.2d 766 [2010], lv. denied 14 N.Y.3d 841, 901 N.Y.S.2d 148, 927 N.E.2d 569 [2010] ).   To the extent that defendant appears to have moved to vacate his judgment of conviction subsequent to its rendering, the direct appeal from the judgment of conviction presently before us is not the proper vehicle to raise issues regarding that motion and its disposition.

2.   Although the record does indicate that counsel did not retain the investigator authorized by County Court, we note that this reveals nothing about counsel's own investigations or lack thereof and, under the totality of the circumstances, counsel's decision not to retain an investigator did not deprive defendant of meaningful representation.

MALONE JR., J.

PETERS, J.P., ROSE, LAHTINEN and McCARTHY, JJ., concur.

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