People v. Johnson

201 A.D.3d 1208

159 N.Y.S.3d 779

The PEOPLE of the State of New York, Respondent,

v.Aaron JOHNSON, Appellant.

111029

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

Calendar Date: December 16, 2021

Decided and Entered: January 20, 2022

James A. Bartosik Jr., Glenmont, for appellant.

J. Anthony Jordan, District Attorney, Fort Edward (Taylor Fitzsimmons of counsel), for respondent.

Before: Garry, P.J., Lynch, Aarons and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Garry, P.J. Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered November 16, 2018, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.

Defendant, an incarcerated individual, was charged in a single-count indictment with promoting prison contraband in the first degree stemming from the discovery of a razor-type weapon in his pant pocket during a random pat frisk of defendant in the correctional facility yard. Defendant pleaded guilty to the reduced charge of attempted promoting prison contraband in the first degree and was sentenced, as a second felony offender, to a prison term of 1½ to 3 years to run consecutively to the sentence he was currently serving. Defendant appeals.

Defendant contends that he was denied the effective assistance of counsel due to counsel's failure to move to suppress the physical evidence seized as a result of the pat frisk, which allegedly left him no choice but to plead guilty. Although ordinarily a defendant must preserve such claim through an appropriate postallocution motion (see People v. Soprano, 135 A.D.3d 1243, 1243, 23 N.Y.S.3d 592 [2016], lv denied 27 N.Y.3d 1007, 38 N.Y.S.3d 116, 59 N.E.3d 1228 [2016] ), the preservation requirement is inapplicable here "as [County] Court sentenced defendant immediately following defendant's guilty plea and, therefore, defendant had no practical opportunity to move to withdraw his plea prior to sentencing" ( People v. Pace, 192 A.D.3d 1274, 1275, 142 N.Y.S.3d 678 [2021] [internal quotation marks and citations omitted], lv denied 37 N.Y.3d 973, 150 N.Y.S.3d 706, 172 N.E.3d 819 [2021] ). Nevertheless, we find defendant's ineffective assistance of counsel claim to be without merit.

"[I]n the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt upon the apparent effectiveness of counsel" ( People v. Soprano, 135 A.D.3d at 1243, 23 N.Y.S.3d 592 [internal quotation marks and citation omitted]; accord People v. Pace, 192 A.D.3d at 1275, 142 N.Y.S.3d 678 ). Moreover, " ‘the failure to request a suppression hearing, standing alone, does not establish that defense counsel provided ineffective assistance, particularly in the absence of any basis upon which to conclude that a defendant had a colorable claim or that counsel's actions were not premised upon a legitimate strategy’ " ( People v. Chaney, 160 A.D.3d 1281, 1285, 76 N.Y.S.3d 257 [2018], lv denied 31 N.Y.3d 1146, 83 N.Y.S.3d 427, 108 N.E.3d 501 [2018], quoting People v. Hall, 147 A.D.3d 1151, 1152, 47 N.Y.S.3d 147 [2017], lv denied 29 N.Y.3d 1080, 64 N.Y.S.3d 170, 86 N.E.3d 257 [2017] ). In addition to failing to demonstrate a lack of strategic reason for counsel not pursuing a suppression motion, defendant also has not demonstrated any basis upon which to find that there was a viable claim of suppression, as he fails to allege that the pat frisk was conducted in an unprofessional manner or was inconsistent with any Department of Corrections and Community Supervision directive (see e.g. People v. Barzee, 190 A.D.3d 1016, 1021, 138 N.Y.S.3d 718 [2021], lv denied 36 N.Y.3d 1094, 144 N.Y.S.3d 110, 167 N.E.3d 1245 [2021] ); "[a] defendant is not denied effective assistance of trial counsel merely because counsel does not make a motion ... that has...