Opinion
2015-06-19
The PEOPLE of the State of New York, Respondent, v. William M. COLLINS, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Caitlin M. Connelly of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Caitlin M. Connelly of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, and WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of driving while intoxicated (DWI) as a class D felony (Vehicle and Traffic Law §§ 1192[3]; 1193[1][c][ii] ) and aggravated unlicensed operation of a motor vehicle in the first degree, a class E felony (§ 511[3][a][i]; [b] ). We agree with defendant that his waiver of the right to appeal was invalid inasmuch as he pleaded guilty to both charges in the superior court information without a sentencing commitment ( see People v. Meiner, 20 A.D.3d 778, 778, 797 N.Y.S.2d 925 n; People v. Coles, 13 A.D.3d 665, 666, 786 N.Y.S.2d 595), but we nevertheless reject his challenge to the severity of the sentence, particularly in view of defendant's numerous driving and alcohol-related offenses.
Although defendant's contention that he received ineffective assistance of counsel during the plea bargaining stage survives his plea of guilty to the extent that he contends that his plea was infected by the ineffective assistance ( see People v. Neil, 112 A.D.3d 1335, 1336, 977 N.Y.S.2d 519, lv. denied 23 N.Y.3d 1040, 993 N.Y.S.2d 254, 17 N.E.3d 509), defendant's contention is without merit ( see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265). Although defense counsel did not negotiate a lower sentence for defendant and he was sentenced to the maximum indeterminate term for the DWI conviction, given defendant's long history of drinking and driving offenses and the serious nature of the instant offense, it was unlikely that the court or the People would have extended a plea offer. “Counsel will not be deemed ineffective for the failure to pursue a course of negotiation that was, at best, ‘dubious' ” ( People v. Dimick, 223 A.D.2d 808, 809, 636 N.Y.S.2d 448, lv. denied 89 N.Y.2d 1034, 659 N.Y.S.2d 865, 681 N.E.2d 1312).
We reject defendant's contention that defense counsel's comments at the sentencing hearing rendered him ineffective. “Even assuming, arguendo, that the attorney took a position adverse to defendant, we conclude that reversal is not warranted because the statements did not ‘contribute to any rulings against defendant’ ” ( People v. Winters, 82 A.D.3d 1691, 1692, 919 N.Y.S.2d 438, lv. denied 17 N.Y.3d 810, 929 N.Y.S.2d 570, 953 N.E.2d 808).
Defendant's contention that defense counsel was ineffective because defendant was misled into believing that he would benefit from the plea cannot be reviewed on direct appeal inasmuch as it is based on matters outside the record ( see People v. Davis, 119 A.D.3d 1383, 1384, 989 N.Y.S.2d 224, lv. denied 24 N.Y.3d 960, 996 N.Y.S.2d 219, 20 N.E.3d 999).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.