People v. Vanvleet

• Decision Date: 10 June 2016
• Citation: 140 A.D.3d 1633,34 N.Y.S.3d 274,2016 N.Y. Slip Op. 04529
• Parties: The PEOPLE of the State of New York, Respondent, v. Alexander S. VANVLEET, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 1633
34 N.Y.S.3d 274
2016 N.Y. Slip Op. 04529

The PEOPLE of the State of New York, Respondent,
v.
Alexander S. VANVLEET, Defendant–Appellant.

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

June 10, 2016.

34 N.Y.S.3d 275

Davison Law Office PLLC, Canandaigua (Mary P. Davison of Counsel), for Defendant–Appellant.

Brooks T. Baker, District Attorney, Bath (John C. Tunney of Counsel), for Respondent.

PRESENT: WHALEN, P.J., CARNI, NEMOYER, TROUTMAN, AND SCUDDER, JJ.

MEMORANDUM:

140 A.D.3d 1633

Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, burglary in the first degree (Penal Law § 140.30[4] ), robbery in the

34 N.Y.S.3d 276

first degree (§ 160.15 [4] ), and two counts of robbery in the second degree (§ 160.10[1], [3] ). Defendant's contention that he was denied effective assistance of counsel does not survive his guilty plea because he failed to demonstrate that “ ‘the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of [defense counsel's] allegedly poor performance’ ” (People v. Lucieer, 107 A.D.3d 1611, 1612, 967 N.Y.S.2d 575 ; see People v. Russell, 55 A.D.3d 1314, 1314, 864 N.Y.S.2d 587, lv. denied 11 N.Y.3d 930, 874 N.Y.S.2d 15, 902 N.E.2d 449 ). Indeed, we note that the record establishes that defendant was motivated by, among other things, the People's promise not to prosecute a family member for hindering prosecution. We reject defendant's contention that his statement to the police was elicited in violation of his right to

140 A.D.3d 1634

counsel. “Where, as here, the right to counsel is alleged to have arisen solely due to the commencement of formal proceedings on another pending charge, the police may question a suspect on an unrelated new matter in the absence of counsel” (People v. Brinson, 28 A.D.3d 1189, 1189–1190, 812 N.Y.S.2d 899, lv. denied 7 N.Y.3d 810, 822 N.Y.S.2d 485, 855 N.E.2d 801 ).

Contrary to defendant's further contention, “the fact that a witness viewed the photo array while a second witness was in the room did not taint the witness's identification of defendant's photograph in the photo...