People v. Shorter

• Decision Date: 29 May 2013
• Citation: 2013 N.Y. Slip Op. 03860,966 N.Y.S.2d 184,106 A.D.3d 1115
• Parties: The PEOPLE, etc., respondent, v. Johnny SHORTER, appellant.
• Court: New York Supreme Court — Appellate Division

106 A.D.3d 1115

966 N.Y.S.2d 184

2013 N.Y. Slip Op. 03860

The PEOPLE, etc., respondent,

v.Johnny SHORTER, appellant.

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

May 29, 2013.

Michael A. Fiechter, Bellmore, N.Y., for appellant.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Douglas Noll and Ezra E. Zonana of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., CHERYL E. CHAMBERS, L. PRISCILLA HALL, and SHERI S. ROMAN, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Honorof, J.), rendered January 11, 2012, convicting him of attempted criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant argues that the Supreme Court improperly denied his motion to vacate his plea of guilty, which was based on his contention that his counsel rendered ineffective assistance. The defendant's claim of ineffectiveness survives his valid waiver of his right to appeal since it affects the voluntariness of the plea ( see People v. Perazzo, 65 A.D.3d 1058, 886 N.Y.S.2d 43). Nevertheless, the Supreme Court properly denied the defendant's motion to vacate his plea on that basis without a hearing since the motion was supported by only conclusory and unsubstantiated allegations ( see People v. Johnson, 97 A.D.3d 695, 948 N.Y.S.2d 120;People v. Douglas, 83 A.D.3d 1092, 921 N.Y.S.2d 324).

The defendant failed to preserve for appellate review his contention that his plea was involuntarily obtained because he was not advised before pleading guilty that he would be required to pay a mandatory surcharge, DNA fee, and crime victims' assistance fee ( see People v. Decker, 77 A.D.3d 675, 908 N.Y.S.2d 361;People v. Brady, 59 A.D.3d 748, 872 N.Y.S.2d 246), and that contention is, in any event, without merit ( see People v. Guerrero, 12 N.Y.3d 45, 47, 876 N.Y.S.2d 687, 904 N.E.2d 823).

The defendant's remaining contention is without merit.

To the extent the defendant challenges an order of the Supreme Court dated April 10, 2012, denying his pro se motion to vacate the judgment pursuant to CPL 440.10, his failure to obtain leave to appeal from that order forecloses review of it ( seeCPL 450.15; 460.15; People v. Alexis, 295 A.D.2d 529, 744 N.Y.S.2d 686).