People v. Gentry
| Decision Date | 27 May 2010 |
| Parties | The PEOPLE of the State of New York, Respondent,v.Tony GENTRY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
73 A.D.3d 1383
901 N.Y.S.2d 429
2010 N.Y. Slip Op. 04467
The PEOPLE of the State of New York, Respondent,
v.
Tony GENTRY, Appellant.
Supreme Court, Appellate Division, Third Department, New York.
May 27, 2010.
[901 N.Y.S.2d 430]
Michael B. Cassidy, Albany, for appellant.P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), for respondent.Before: MERCURE, J.P., PETERS, SPAIN, ROSE and KAVANAGH, JJ.ROSE, J.
[73 A.D.3d 1383] Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered April 25, 2007, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.
In satisfaction of a two-count indictment, defendant pleaded guilty to criminal possession of a controlled substance in the third degree, waived his right to appeal and was sentenced as a second felony offender to the agreed-upon term of six years in prison followed by three years of postrelease supervision. Defendant now appeals, contending that he was denied the effective assistance of counsel.
[73 A.D.3d 1384] We affirm. Although defendant's waiver of the right to appeal does not bar his ineffective assistance of counsel claim insofar as it relates to the voluntariness of his plea ( see People v. Dobrouch, 59 A.D.3d 781, 873 N.Y.S.2d 759 [2009], lv. denied 12 N.Y.3d 853, 881 N.Y.S.2d 664, 909 N.E.2d 587 [2009] ), counsel's alleged failure to request a suppression hearing does not impact upon the voluntariness of defendant's plea ( see 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]; see also People v. Leigh, 71 A.D.3d 1288, 897 N.Y.S.2d 744 [2010] ). Moreover, even assuming this argument is not precluded by defendant's waiver of the right to appeal, his failure to move to withdraw his plea or vacate the judgment of conviction renders it unpreserved for our review ( see People v. Anderson, 63 A.D.3d 1191, 1193, 879 N.Y.S.2d 849 [2009], lv. denied 13 N.Y.3d 794, 887 N.Y.S.2d 543, 916 N.E.2d 438 [2009]; People v. Cintron, 62 A.D.3d 1157, 1158, 881 N.Y.S.2d 183 [2009], lv. denied 13 N.Y.3d 742, 886 N.Y.S.2d 96, 914 N.E.2d 1014 [2009] ). In any event, “[t]he fact that defense counsel did not request a particular pretrial hearing does not necessarily constitute ineffective assistance of counsel” ( People v. Jackson, 67 A.D.3d 1067, 1068, 888 N.Y.S.2d 657 [2009], lv. denied
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