People v. Harris
| Decision Date | 11 March 2022 |
| Docket Number | 114,KA 19-02225 |
| Citation | 203 A.D.3d 1572,161 N.Y.S.3d 900 (Mem) |
| Parties | The PEOPLE of the State of New York, Respondent, v. Derrick HARRIS, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KAITLYN M. GUPTILL OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, AND PERADOTTO, JJ.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his guilty plea of attempted criminal possession of a weapon in the second degree ( Penal Law §§ 110.00, 265.03 [3] ). We reject defendant's contention that County Court erred in refusing to suppress his statements to the police during an interview. The evidence presented at the suppression hearing demonstrated that defendant was twice informed of his Miranda rights, that he understood those rights, and that he was not under duress or undue influence when he made those statements (see People v. Sanders , 171 A.D.3d 1460, 1461, 99 N.Y.S.3d 149 [4th Dept. 2019], lv denied 33 N.Y.3d 1108, 106 N.Y.S.3d 692, 130 N.E.3d 1302 [2019] ). Under the circumstances of this case, the tactics used by the police in suggesting that others could be adversely affected if defendant did not admit to owning the subject handgun did not require suppression of defendant's statements (see People v. Lewis , 93 A.D.3d 1264, 1265, 940 N.Y.S.2d 722 [4th Dept. 2012], lv denied 19 N.Y.3d 963, 950 N.Y.S.2d 115, 973 N.E.2d 213 [2012] ).
Defendant's further contention that his plea was not knowingly, intelligently, and voluntarily entered is not preserved for our review inasmuch as he did not move to withdraw the plea or to vacate the judgment of conviction on the grounds presently raised on appeal, nor did the court expressly decide the questions raised on appeal (see People v. Barrett , 153 A.D.3d 1600, 1601, 62 N.Y.S.3d 653 [4th Dept. 2017], lv denied 30 N.Y.3d 1058, 71 N.Y.S.3d 8, 94 N.E.3d 490 [2017] ; see also People v. Bentley , 191 A.D.3d 1392, 1392, 137 N.Y.S.3d 800 [4th Dept. 2021], lv denied 37 N.Y.3d 954, 147 N.Y.S.3d 542, 170 N.E.3d 416 [2021] ; People v. Molski , 179 A.D.3d 1540, 1541, 118 N.Y.S.3d 870 [4th Dept. 2020], lv denied 35 N.Y.3d 972, 125 N.Y.S.3d 7, 148 N.E.3d 471 [2020] ). We reject defendant's contention that the court abused its discretion in denying his pro se motion to withdraw his guilty plea without conducting an evidentiary hearing or conducting a further inquiry into his allegation. As limited by defendant at sentencing, that motion was " ‘patently insufficient on its face’ " ( People v. Shorter , 179 A.D.3d 1445, 1446, 118 N.Y.S.3d 324 [4th Dept. 2020], lv denied 35 N.Y.3d 974, 125 N.Y.S.3d 19, 148 N.E.3d 483 [2020] ; see also People v. Williams , 103 A.D.3d 1128, 1128-1129, 958 N.Y.S.2d 826 [4th Dept. 2013], lv denied 21 N.Y.3d 915, 966 N.Y.S.2d 366, 988 N.E.2d 895 [2013] ).
We likewise reject defendant's final contention that he was deprived of effective assistance of counsel. The record belies defendant's assertion that defense counsel failed to properly inform defendant of the circumstances and consequences of his plea (see generally People v. Demus , 82 A.D.3d 1667, 1668, 919 N.Y.S.2d 664 [4th Dept. 2011], lv denied 17 N.Y.3d 815, 929 N.Y.S.2d 804, 954 N.E.2d 95 [2011] ). Contrary to defendant's further assertion, defense counsel's failure to join in defendant's pro se motion to withdraw the plea at sentencing did not constitute ineffective assistance (see People v. Weinstock , 129 A.D.3d 1663, 1664, 11 N.Y.S.3d 782 [4th Dept. 2015], lv denied 26 N.Y.3d 1012, 20 N.Y.S.3d 552, 42 N.E.3d 222 [2015] ; People v. Trombley , 91 A.D.3d 1197, 1202-1203, 937 N.Y.S.2d 665 [3d Dept. 2012], lv denied 21 N.Y.3d...
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