PEOPLE v. WILLIAMS

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

The PEOPLE of the State of New York, Respondent, v. Kasheem WILLIAMS, Appellant.

108763

Decided: April 18, 2019

Before:  Garry, P.J., Lynch, Clark, Mulvey and Rumsey, JJ. Rebecca L. Fox, Plattsburgh, for appellant, and appellant pro se. J. Anthony Jordan, District Attorney, Fort Edward (Joseph A. Frandino of counsel), for respondent.

MEMORANDUM AND ORDER

Defendant was indicted and charged with one count of promoting prison contraband in the first degree.  Consistent with the terms of a negotiated plea agreement, defendant thereafter pleaded guilty to the reduced charge of attempted promoting prison contraband in the first degree and was sentenced as a second felony offender to the agreed-upon prison term of 11/212 to 3 years.  This appeal ensued.

We affirm.  Defendant initially contends that he was denied the effective assistance of counsel – a claim largely premised upon defense counsel's failure to move to dismiss the indictment upon the ground that defendant was not provided with notice of the grand jury proceeding.  By pleading guilty, however, defendant forfeited any claim that he was denied his right to appear before the grand jury (see People v. Nieves, 166 A.D.3d 1380, 1381 n., 88 N.Y.S.3d 703 [2018];  People v. Carlton, 120 A.D.3d 1443, 1444, 991 N.Y.S.2d 806 [2014], lv denied 25 N.Y.3d 1070, 12 N.Y.S.3d 621, 34 N.E.3d 372 [2015] ).  Moreover, as this matter involved a “direct presentment” to the grand jury, defendant was not entitled to notice that a grand jury proceeding was pending (see CPL 190.50[5][a] );  hence, even assuming that this issue was properly before us, defense “counsel cannot be faulted for failing to make [a] motion[ ] that had little or no chance of success” (People v. Kerley, 154 A.D.3d 1074, 1076, 63 N.Y.S.3d 538 [2017], lv denied 30 N.Y.3d 1106, 77 N.Y.S.3d 5, 101 N.E.3d 391 [2018] ).

The arguments raised in defendant's pro se brief do not require extended discussion.  Defendant's challenge to the voluntariness of his plea is unpreserved for our review in the absence of an appropriate postallocution motion, and given that defendant did not make any statements during the plea colloquy that cast doubt upon his guilt or otherwise called into question the voluntariness of his plea, the narrow exception to the preservation requirement was not triggered (see People v. Hatch, 165 A.D.3d 1321, 1321–1322, 82 N.Y.S.3d 744 [2018], lv denied 32 N.Y.3d 1125, 93 N.Y.S.3d 263, 117 N.E.3d 822 [2018];  People v. White, 157 A.D.3d 1128, 1129, 69 N.Y.S.3d 444 [2018], lv denied 31 N.Y.3d 1018, 78 N.Y.S.3d 288, 102 N.E.3d 1069 [2018] ).  Defendant's related ineffective assistance of counsel claim – to the extent that it impacts upon the voluntariness of his plea – is similarly unpreserved (see People v. Muller, 159 A.D.3d 1232, 1232, 73 N.Y.S.3d 279 [2018];  People v. Sparbanie, 158 A.D.3d 942, 944, 71 N.Y.S.3d 669 [2018], lv denied 31 N.Y.3d 1087, 79 N.Y.S.3d 109, 103 N.E.3d 1256 [2018] ).  The balance of defendant's ineffective assistance of counsel claim, wherein he asserts that counsel offered erroneous legal advice, pressured him to accept a guilty plea and failed to, among other things, properly investigate his case and/or effectively communicate with him, involves matters outside of the record that are, in turn, more properly pursued in the context of a CPL article 440 motion (see People v. Muller, 159 A.D.3d at 1233, 73 N.Y.S.3d 279;  People v. Goldston, 126 A.D.3d 1175, 1178, 5 N.Y.S.3d 600 [2015], lv denied 25 N.Y.3d 1201, 16 N.Y.S.3d 524, 37 N.E.3d 1167 [2015] ).  Defendant's remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit.

ORDERED that the judgment is affirmed.

Lynch, J.

Garry, P.J., Clark, Mulvey and Rumsey, JJ., concur.

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